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Cook Islands Sessional Legislation |
COOK ISLANDS
Ministry of Health
2013 No. 06
Examined and certified by: Clerk of the Parliament
In the name and on behalf of Her Majesty Queen Elizabeth the Second I hereby assent to this Act this 13th day of June 2013
Queen's Representative
Contents
Part 1
Preliminary matters
Part 2
The Ministry of Health
Part 3
Administrative and operational arrangements
Part 4
Powers of the Ministry to regulate the health sector
Part 5
Responsibilities for international health related conventions
Part 6
Protecting the rights of patients
Part 7
General and miscellaneous provisions
Schedule
Amendments to penalties under other laws for which the Ministry is responsible
_____________________
An Act to repeal the Ministry of Health Act 1995-1996 and to comprehensively provide for the functions and powers of the Ministry of Health under modern and reformed arrangements, and for related purposes.
The Parliament of the Cook Islands enacts as follows-
This Act is the Ministry of Health Act 2013.
This Act commences on the date it is assented to by the Queen's Representative.
Part 1
Preliminary matters
In this Act, unless the context otherwise requires,—
- allied health professions means the practice, whether for reward or otherwise, by persons as any of the following—
- (a) pharmacists:
- (b) optometrists:
- (c) psychologists:
- (d) acupuncturists:
- (e) radiographers:
- (f) physiotherapists:
- (g) speech therapists:
- (h) occupational therapists:
- (i) chiropractors:
- (j) podiatrists:
- (k) dieticians and nutritionists:
- (l) naturopaths:
- (m) laboratory and other technicians:
- (n) hygienists or assistants employed in relation to health services:
- (o) ambulance officers and para-medics:
- (p) traditional healers:
- (q) any other medical related occupation or service prescribed by regulations to be an allied health profession
- allied health professional means any person practising or purporting to practice any of the allied health professions, whether for reward or otherwise
- Head of Ministry means the Head of Ministry of Health, which may have the title of "Secretary" or any other title applied from time to time under any applicable law, or as determined by Cabinet
- health service includes, but is not limited to any of the following—
- (a) public health services, including services to prevent, limit and suppress infections and other diseases:
- (b) health promotion services:
- (c) primary care health services:
- (d) secondary health services:
- (e) tertiary health services:
- (f) oral health services:
- (g) disability health services:
- (h) environmental health services:
- (i) any other service or activity determined from time to time to be a health service by the Minister by written Order; and
- (j) any service, facility, institution or body concerned with or related to any health service under paragraphs (a) to (h)
- legal guardian or legal representative means a person authorised by law to be the guardian or legal representative of another person
- Minister means the Minister responsible for health
- Ministry means the Ministry of Health continued by this Act, the name of the Ministry being subject to any approved change of name as provided for by section 3(3)
- health professional means any person who practises or purports to practice any branch of medicine, dentistry or nursing (and midwifery), and includes any medical practitioner, dental practitioner or nurse (and nursing practitioner) required to be registered in accordance with law;
- health service provider means a provider of a health service, and includes but is not limited to any of the following-
- (a) the Ministry:
- (b) any other Government Body or Agency providing a health service:
- (d) a medical practitioner:
- (e) a dental practitioner:
- (f) a pharmacist:
- (g) a nurse:
- (h) a nurse practitioner:
- (i) a midwife:
- (j) any allied healthcare professional regulated by law:
- (k) any person (incorporated or otherwise) providing a health service for reward or otherwise:
- (l) any local government or non-government organisation (incorporated or otherwise) providing a health service for reward or otherwise:
- (m) any other person or body determined from time to time to be a health service provider by the Minister by Notice, acting on the advice of the Head of Ministry
- repealed Act means the Ministry of Health Act 1995-1996.
This Act binds the Crown.
Part 2
The Ministry of Health
(1) The Ministry of Health established under the repealed Act is continued and has the functions, powers, roles and responsibilities provided for under this Act.
(2) A reference to the Ministry of Health in any Act, law, order, instrument or document is deemed to be a reference to the Ministry of Health continued under this section.
(3) Nothing in this Act prevents a change being made to the name of the Ministry in accordance with law.
The functions of the Ministry include responsibilities relating to all of the following—
- (a) to develop, maintain, administer, operate and manage government owned or operated health facilities, and all related services and operations:
- (b) to regulate health facilities which the Ministry does not manage or operate, and health services which the Ministry does not provide:
- (c) to promote and ensure the proper and effective education, training and regulation of health professionals and allied health professionals, and to provide oversight and assistance to professional bodies lawfully exercising such roles and functions:
- (d) to establish, regulate, implement and enforce standards concerning the training, qualifications and performance required for health professionals, allied health professionals and other health service providers in accordance with the provisions of this Act and any applicable laws:
- (e) to monitor the performance of health service providers, and ensure that action is taken in accordance with law to enforce standards of health care, and professional and ethical conduct in the provision of health services:
- (f) to establish and implement systems of quality control and complaints related to the provision of health services:
- (g) to promote and protect the rights of patients and persons using the services of health service providers in the Cook Islands:
- (h) to develop health management systems and to promote capacity building in relation to health planning, health resourcing, health information and health research:
- (i) to cooperate with, assist and support government agencies, non-government agencies and Island Governments in relation to the provision of health services and the implementation of health related programs and activities:
- (j) to implement laws, requirements, programs and initiatives related to public health issues affecting the health of the community and the environment (including vector control, port health and border control, water resources, food safety and nutrition, waste management, hazardous and harmful substances and practices, immunisation and disease prevention and community health services):
- (k) to ensure that drugs and therapeutic products used in the Cook Islands are genuine, effective and beneficial, and to regulate their provision, distribution and use:
- (l) to provide the Government and the Minister with advice as to strategies, policies and planning concerning the development, resourcing, provision and management of health services, and effective regulation of the health sector:
- (m) to otherwise administer, implement and enforce all laws related to health matters and to the provision of health services, and any other subject or matter as may be determined by Cabinet from time to time.
(1) The Ministry has all powers that are necessary for or incidental to the performance of its functions under this Act and any applicable law.
(2) The Head of Ministry is responsible and accountable to the Minister for carrying out of the Ministry's functions and the performance of its powers under this Act, and any applicable law.
(3) The Ministry has the power to provide any health service, or to arrange for and provide health services by or through a health service provider, subject to any approved government policy, and any requirement relating to payment or reimbursement of the costs of such services by the patient.
(1) The Head of Ministry has the power to perform all of the functions provided by this Act and any applicable law.
(2) Without limiting the generality of subsection (1), the Head of Ministry is authorised and empowered to do all of the following—
- (a) to manage the staff of the Ministry, and issue directives to Ministry employees and any other person lawfully exercising powers under this Act, and any other law for which the Ministry is responsible:
- (b) to take any such action and make any such arrangements as are necessary for the effective operation and management of government owned and operated health facilities:
- (c) to issue any directive and otherwise take action to ensure that any body lawfully exercising powers relating to the management and regulation of heath professionals or allied health professionals effectively manages and regulates the relevant profession in accordance with law and applicable standards, rules, operating procedures, guidelines or codes of conduct:
- (d) to promote programs of education, training and effective regulation of health professionals, allied health professional, and health service providers:
- (e) to develop applicable standards, rules, operating procedures, guidelines or codes of conduct in accordance with this Act, and to ensure that they are applied, observed and enforced after they have been brought into effect:
- (f) to develop, approve, apply and enforce programs and activities relating to the monitoring of health facilities and health service providers, and the implementation of systems of quality control and complaints:
- (g) to develop and apply effective health management systems and capacity building programs within the Ministry and the health sector:
- (h) to ensure that action is taken to respect and protect the rights and interests of patients, users of health services, and persons under the care of the Ministry in its health facilities:
- (i) to ensure that applicable conventions and related programmes and initiatives are applied in the Cook Islands, and that all obligations applying under them are complied with:
- (j) to ensure that the Ministry acts in cooperation and collaboration with other government Ministries and agencies which have roles related to or affecting human health:
- (k) to develop strategies, plans and policies in relation to the functions or responsibilities of the Ministry, or which otherwise relate to the protection of human health, and to ensure that advice on such matters is given to the Minister, the government and the community:
- (l) to do any other act necessary for or incidental to the roles, functions and powers of the Ministry and the effective application and enforcement of any law for which the Ministry is responsible.
Part 3
Administrative and operational arrangements
(1) The Minister may, by written Order, appoint any technical, regulatory or advisory committee or board that the Minister considers necessary to assist in carrying out any function under this Act or any applicable law, and may do all of the following—
- (a) authorise a committee or board established under this section to make enquiries, conduct research or make reports that the Minister considers will assist the Minister or the Ministry to efficiently carry out their functions under this Act:
- (b) delegate powers and functions to a committee or board, and prescribe the procedures in relation to any matter concerning any committee or board established under this section:
- (c) appoint or dismiss any member of a committee or board established under this section:
- (d) by written Order, dissolve any committee or board established under this section.
(2) The Minister must consider the nature of the community interest and the matters to be addressed by a committee or board when determining its membership.
(3) An Order establishing a committee or board under this section must specify—
- (a) the name of the committee or board:
- (b) the purpose for establishing the committee or board, and its functions, roles, responsibilities and powers:
- (c) the membership of the committee or board.
(4) Members of committees and boards established under this section are entitled to receive such sitting and other allowances as are approved from time to time by Cabinet for members of government committees and boards.
(1) The Minister and the Head of Ministry may delegate to any person, or any committee or board established under section 9, any of the functions and powers which are conferred by this or any other Act for which the Ministry is responsible.
(2) A delegation made under this section must be made in writing.
(3) The delegation of a function or power under this Act does not prevent the Minister or Head of Ministry (as the case may be) from exercising that function or power.
(4) A delegation made under this section may be revoked at will by the Minister or Head of Ministry (as the case may be).
(5) A delegation made under this section by a Minister or Head of Ministry who subsequently ceases to hold office continues in force as if made by that person's successor in office, until such delegation is revoked.
(1) In the development and delivery of health related services and programs the Ministry has the responsibility and authority to—
- (a) work in collaboration with island governments, and to vest roles, responsibilities and powers in accordance with any law relating to island governments, and by any other appropriate and lawful means:
- (b) involve and empower non-government organisations.
(2) When performing any role or power in accordance with this section, an employee or representative of an island government or non-government organisation is entitled to—
- (a) exercise any power delegated in accordance with this Act, or any other applicable law:
- (b) all legal protections and indemnities provided by this Act, or any other applicable law.
(1) The Head of Ministry may give written authorisation for teams of visiting medical professionals to provide health services within Cook Islands.
(2) When granting an approval under this section the Head of Ministry may impose any requirements, consistent with this Act and any other law for which the Ministry is responsible, to ensure that—
- (a) the qualifications and experience of the visiting health and allied health professionals meet applicable or appropriate standards:
- (b) the health services are provided in a professional and beneficial manner, and with clear outcomes:
- (c) the interests of Cook Islands and Cook Islanders are advanced and protected:
- (d) no unauthorised or inappropriate pharmaceutical or therapeutic products are used or left behind:
- (e) team members have adequate insurance cover:
- (f) the composition of the team, and any activity of the visiting team complies with law and approved standards and codes of practice, and is in the public interest.
(3) All government Ministries and agencies must facilitate the entry into Cook Islands of an approved visiting medical team and ensure that such health and allied health professional are permitted to provide the health services without undue interference or disruption.
(4) The Head of the Ministry may waive any registration and other professional fees applicable to visiting health and allied health professionals on teams authorised under this section.
(1) The Ministry is responsible for managing and implementing schemes authorised by the Minister for the referral of eligible patients within Cook Islands for specialised medical treatment outside Cook Islands, or for the transfer of patients for treatment within the Cook Islands.
(2) In relation to such schemes for the referral of patients for treatment overseas, the Head of Ministry has all of the following responsibilities and powers—
- (a) to accept and authorise a recommendation made by a treating doctor and the referral committee for the referral of a patient:
- (b) to review the condition and status of any patient and refer the matter to the referral committee for the purpose of determining whether a referral should be made:
- (c) to implement all aspects of an approved referral scheme and ensure that all financial and reporting requirements are observed, applied and implemented:
- (d) to do all other acts as are required or necessary to implement any approved scheme.
(3) All government Ministries and agencies must facilitate the implementation of an approved scheme for the referral of patients for treatment overseas, and must ensure that administrative and regulatory arrangements and requirements do not adversely affect the implementation of such schemes and the health and welfare of patients.
(4) The grounds for eligibility of patients for referral or transfer under schemes approved under this section must be fair and reasonable, and may impose criteria or restrictions, or impose obligations to reimburse the expenses incurred, based upon any of the following—
- (a) citizenship or residency status:
- (b) income or wealth:
- (c) the extent to which the patient contributed to the need for the referral by abuse of drugs or alcohol, or by any illegal behaviour:
- (d) any other consideration aimed at ensuring that such schemes are implemented for the benefit of Cook Islands and Cook Islanders.
(1) An investigation or inquiry to be conducted in accordance with this section may be ordered or instigated by the Minister or the Head of Ministry.
(2) The Minister or the Head of Ministry may authorise any officer of the Ministry or other appropriate public servant to undertake an inquiry or investigation under this section.
(3) For the purposes of any investigation or inquiry under this section, the Head of Ministry may, by written Order, require any person involved or any activity or matter under investigation or inquiry to do all of the following—
- (a) to answer any question or provide any explanation relevant to any matter under investigation or inquiry:
- (b) to produce or allow access to any record, report, document or statistics in the possession of or under the control of that person, and which is relevant to any matter under investigation or inquiry:
- (c) allow copies to be taken of any document relevant to any matter under investigation or inquiry.
(4) A person who does any of the following—
- (a) fails to comply with an order made under subsection (3):
- (b) interferes with or obstructs an inquiry or investigation undertaken under this section:
- (c) fails to cooperate with or assist the Minister, the Head of Ministry, or an authorised officer undertaking an investigation or inquiry under this section—
commits an offence and is liable on conviction to a fine not exceeding-
- (i) $5,000, in the case of an individual; or
- (ii) $10,000 in the case of a company.
(5) All information obtained during an investigation or inquiry undertaken under this section is to be treated as confidential, and may only be published if all of the following apply—
- (a) the publication must be relevant to and in support of a function of the Ministry or Head of Ministry under this Act:
- (b) no legally recognised privilege or right of confidentiality is violated:
- (c) names and identities of specific individuals are not revealed.
(6) The report, and any interim report, of an investigation or inquiry undertaken under this section must be made available to the Minister and the Head of Ministry as soon as possible after the completion of the investigation or inquiry, or when requested by the Minister or Head of Ministry.
(7) A report arising from an investigation or inquiry undertaken under this section must be provided to—
- (a) the Chief of Staff of the Office of the Prime Minister:
- (b) the Public Service Commissioner:
- (c) the Solicitor General:
- (d) the Financial Secretary, if any findings of financial irregularity are made.
Part 4
Powers of the Ministry to regulate the health sector
(1) In addition to the functions, roles, responsibilities and powers of the Ministry under this Act and any other relevant law, the Ministry is specifically authorised to regulate, or ensure that proper regulatory measures are taken in relation to, all of the following—
- (a) the registration, licensing and discipline of health professionals and allied health professionals (including requirements for educational qualifications and work experience applying to health professionals and allied health professionals):
- (b) any matter which adversely affects, or may adversely affect, human health and the health of the Cook Islands community:
- (c) any matter which may cause or contribute to the spread of disease or infection:
- (d) assessing and approving the health of persons desiring to live in the Cook Islands on a temporary or permanent basis, or to enter the Cook Islands for any other purpose:
- (e) any matter or thing required to implement the International Health Regulations in Cook Islands, and any other international recognised and accepted requirements and practices relevant to health:
- (f) all health related matters concerning the sale of food, the provision of water, and sanitary conveniences and facilities in residential and commercial premises, and in public areas:
- (g) any other regulatory role or function in accordance with this Act or any other law for which the Ministry is responsible.
(1) The Ministry may develop, apply, impose and enforce standards, rules, operating procedures, guidelines or codes of practice relevant to any aspect of its functions and powers under this Act.
(2) When determining and applying standards, rules, operating procedures, guidelines or codes of practice under this section—
- (a) recognised international standards, rules, operating procedures, guidelines or codes of practice, or those applying in any appropriate country may be adopted for any regulatory purpose under this Act:
- (b) the professional standards applying to health professionals and allied health professional in any appropriate country may be adopted as the professional standards to be observed by the relevant health professionals and allied health professionals in the Cook Islands.
(3) Any standard, rule, operating procedure, guideline or code of practice developed or adopted by the Ministry under this section takes effect upon its approval, given in writing by the Minister.
(4) Without limiting the generality of subsection (1), the Ministry may impose and enforce standards, rules, operating procedures, guidelines or codes of practice relevant to any of the following-
- (a) any pharmaceutical or therapeutic product:
- (b) the state of hygiene of any place, and the provision of any sanitary device or service (including the standards or specifications of any sanitary device, process, facility or service):
- (c) all aspects of proper professional conduct by health professionals and allied health professionals, including matters relevant to any of the following-
- (i) the observance of Codes of Conduct and standards of professional practice relevant to the duties and activities of the relevant profession or allied profession:
- (ii) the observance of legal requirements applying to health professionals and allied health professionals, and the implementation of processes prescribed by law:
- (iii) the legal and human rights of patients and users of health services and pharmaceuticals:
- (iv) issues concerning charges made for the provision of professional services and the accounting to government for the use of any government facilities and services for which a charge is made to a patient or customer:
- (d) keeping medical and patient records, including matters related to confidentiality, accessing the records, notification requirements and any other matter relating to the use of such records, or restrictions on such use:
- (e) any other matter or issue relating to a function or power of the Ministry under this Act, or any other law for which the Ministry is responsible.
(5) The Ministry may display signs, or require that signs be displayed, at any place, which give directions to be observed by all persons at such places relevant to any standard, rule, operating procedure, guideline or code of practice approved under this section.
(6) Inspectors and enforcement officers may give directions to any person for the purpose of ensuring compliance with any standard, rule, operating procedure, guideline, code of practice or sign made or displayed in accordance with this section.
(7) Any person who fails or refuses to comply with any standard, rule, operating procedure, guideline, code of practice or sign made or displayed in accordance with this section, or with any direction given under subsection (5), commits an offence and is liable upon conviction to a fine not exceeding—
- (a) $5,000 — in the case of individuals; or
- (b) $10,000 — in the case of companies.
(1) In addition to the professional standards determined under section 16 or applied under the authority of any other law, a health professional or allied health professional breaches the standards of professional conduct if he or she does any of the following—
- (a) commits a criminal offence which is in any way associated with his or her work or duties as a health professional or allied health professional:
- (b) breaches the requirement of any law while performing work or duties as a health professional or allied health professional:
- (c) breaches a requirement imposed, or a direction given, by a person empowered by law or contract to impose requirements or give directions to a health professional or allied health professional.
(2) The charging of a health professional or allied health professional for the breach of any criminal offence, or the conviction of that health professional or allied health professional, does not affect the taking of disciplinary action against the professional for the breach of a professional standard arising from the same facts and circumstances as the criminal proceedings.
(1) The Head of Ministry is authorised to exercise all of the powers of an inspector and enforcement officer under this Act.
(2) All persons employed in the Ministry in positions designated as inspectors or enforcement officers are authorised to all of the powers of an inspector and enforcement officer under this Act.
(3) The Head of Ministry may, from time to time and with the approval of the Minister, appoint any employee of the Ministry to be an inspector or enforcement officer for the purposes of this Act and any other law for which the Ministry is responsible, and may revoke any appointment.
(4) The Minister may appoint any public servant or other person who is not an employee of the Ministry, to be an inspector or enforcement for the purpose of this Act, but any such person is not to be regarded as an employee of the Ministry by reason of such an appointment.
(5) The Head of Ministry may, with the approval of the Minister, designate any office within the Ministry so that any person holding that office from time to time shall be an inspector or enforcement officer for the purposes of this Act.
(6) All inspectors and enforcement officers appointed under this section, whether officers of the Ministry or not, must act in accordance with any direction given by the Head of Ministry, and if they are full time officers or employees of the Public Service they are not entitled to any additional remuneration in respect of their appointment under this section.
(1) For the purposes of implementing and enforcing the provisions of this Act and any other law for which the Ministry is responsible, and for the purposes of monitoring and containing any adverse or harmful effects on human health, inspectors and other enforcement officers appointed under section 18 have authority to exercise any of the following powers—
- (a) to enter upon any land:
- (b) to enter private premises after notifying the owner of their intention to do so:
- (c) to take samples for testing and analysis of any matter, substance or thing which may be harmful to human health:
- (d) to take photographs and measurements, and to otherwise collect any necessary evidence relating to any the exercise of any function or power under this Act:
- (e) require any person apparently doing any act or controlling any thing which appears to be harmful to human health, to state his or her full name and usual place of residence:
- (f) to require the production of records and information held by any person relating to any of the following-
- (i) any matter, substance or thing which may be harmful to human health:
- (ii) any licence, permit or authority relating to any activity or enterprise which may be harmful to human health:
- (iii) any registration or qualification of a health professional, health service provider, or any other person who is subject to regulatory control by the Ministry:
- (iv) any other matter or thing involving the lawful exercise by the Ministry of a function or power under this Act:
- (g) to seize any item or thing which is in breach of any health related law, and to deal with such items or things in accordance with law:
- (h) to order that any matter, substance or thing which may be adversely impacting upon or endangering human health be contained, removed or otherwise dealt with so as to prevent or minimise its adverse effects on human health:
- (i) to order that certain items, substances or things be treated as being harmful to human health, and be removed from land or premises and deposited at an approved dump, waste management or other disposal facility or place.
(2) A person who refuses or fails to comply with an order given under subsection (1)(h) or (i) commits an offence and is liable upon conviction to—
- (a) a fine not exceeding $5,000 or imprisonment not exceeding 6 months, or both — in the case of individuals; or
- (b) $10,000 — in the case of companies.
(1) If an inspector or enforcement officer suspects that an activity, matter or thing may be in breach of any law for which the Ministry is responsible and may be endangering or about to endanger human health, the inspector or enforcement officer may issue a notice requiring that any person apparently in control of or associated with the activity, matter or thing comply with any requirement specified in sub-section (2).
(2) A notice issued under sub-section (1) may require all or any of the following—
- (a) that information be provided in relation to the activity, matter or thing to satisfy the Head of Ministry that no breach of the law is occurring, and that risk to human health is not arising from the activity, matter or thing:
- (b) that alternative activities or operating techniques be considered and employed to avoid or decrease the risks to human health:
- (c) that improvements or alterations be made in relation to the activity, matter or thing to the satisfaction of the Head of Ministry, to avoid or decrease the risks to human health:
- (d) any other requirement, as determined by the Head of Ministry, to ensure that the activity, matter or thing is not adversely affecting human health.
(3) A person served with a notice under this section must ensure that the requirements stated in the notice are complied with within the time stipulated, and must satisfy the Head of Ministry, prior to the expiration of that time, that the activity, matter or thing is not in breach of any law and does not constitute a risk to human health.
(1) A Notice may be issued under this section whether or not a Precautionary Notice has been served under section 20.
(2) If the Minister is of the opinion that there is occurring, or may occur, an act or activity which involves a breach of any law for which the Ministry is responsible and may be an immediate threat or risk to human health, the Minister may issue a Notice under this section.
(3) A Notice issued under this section must—
- (a) be directed to any person, organisation or body whom the Minister believes is carrying out the act or activity, or apparently has some control over it:
- (b) specify the act or activity, and the nature of the breach of the law and the risk to human health:
- (c) require that the act or activity cease, or not be done, until the Minister is satisfied that the threat or risk no longer exists.
(4) A Notice may be served under this section notwithstanding that any approval, licence or permit has been granted in relation to the activity.
(5) The Minister and the Government are not liable in respect of any loss or damage arising from, or in any way connected with, the issuing of a Notice under this section.
(1) A person who—
- (a) hinders or obstructs an inspector or enforcement officer in the performance of his or her duties under this Act or any law for which the Ministry is responsible, or in the exercise of any lawful power:
- (b) induces or incites any other person to hinder or obstruct an inspector or enforcement officer acting in accordance with this Act or any law for which the Ministry is responsible:
- (c) by words or conduct falsely represents that he or she is an inspector or enforcement officer, or who otherwise impersonates an inspector or enforcement officer:
- (d) fails to comply with a lawful requirement, direction or order made or given by an inspector or enforcement officer:
- (e) provides false or misleading information when required to do so under this Act –
- commits an offence, and is liable upon conviction to-
- (i) a fine not exceeding $5,000 or imprisonment not exceeding 6 months, or both - in the case of individuals; or
- (ii) $10,000 - in the case of companies.
(2) A person who, having been served with a Notice issued pursuant to section 20 -
- (a) fails to comply with a requirement stated in the Notice; or
- (b) fails to satisfy the Head of Ministry that an activity, matter or thing is not or is no longer adversely impacting upon the environment within the time stipulated—
- commits an offence, and is liable upon conviction -
- (i) if no adverse impact has been done to human health, to a fine not exceeding $1,000; or
- (ii) if human health has been adversely impacted upon, to a fine not exceeding $10,000, or to imprisonment for a term not exceeding one year, or both.
(3) A person who—
- (a) having been served with a Notice issued under section 21, fails to comply with any of its terms:
- (b) having been served with a Notice issued under section 22, causes or permits any other person to act in breach of its requirements; or
- (c) knowingly acts in breach of the requirements of a Notice given under section 22, whether or not that person has been served with the Notice—
- commits an offence and is liable upon conviction to-
- (i) a fine not exceeding $5,000 or imprisonment not exceeding 6 months, or both - in the case of individuals; or
- (ii) $10,000 - in the case of companies.
(4) In addition to any other penalty imposed under this section, a court may order that any person convicted of an offence—
- (a) do any act to remove any risk to human health arising from the offence:
- (b) pay to the Government any sum representing the cost of responding to any threat to human health arising from the offence; or
- (c) pay any compensation to the Government, or to any other person affected by the offence, in respect of any damage caused.
(5) If a corporation is guilty of an offence under this Act, any officer or agent of the corporation who authorised, assented to or participated in, or by his or her neglect or omission contributed to the commission of the offence, is a party to and may be found guilty of the offence, and is liable to the penalty provided for the offence.
(1) The Head of Ministry, and any officer of the Ministry authorised in writing by the Head of Ministry, may provide a certificate—
- (a) stating any fact known to the Ministry:
- (b) providing the result of any test, inspection or analysis undertaken by or on behalf of the Ministry; or
- (c) indicating the content of any record or register maintained by or on behalf of the Ministry.
(2) Despite any other law, a certificate issued under subsection (1) is admissible as prima facie evidence of the facts or information stated in the certificate for any of the following purposes -
- (a) in any proceedings of a court or tribunal:
- (b) for any determination by a Ministry or other government agency or any other person exercising judicial or administrative authority in accordance with law.
(3) A certificate purporting to comply with the requirements of subsection (1) is to be presumed to be duly and lawfully issued unless the contrary is proved.
Part 5
Responsibilities for international health related conventions
(1) In this Part, unless the context otherwise requires, Convention includes any forum, association, meeting, agency or programme of an international or regional agency in which Cook Islands is entitled to membership or participation.
(2) For the purposes of this Part, the meaning given to any word or phrase in a convention to which this Part applies, applies to words and phrases used in this Part and any regulations made under this Part.
This Part applies to all of the following—
- (a) the International Health Regulations:
- (b) any health related convention to which Cook Islands is a party or participant:
- (c) any specific health related conventions which the Minister, by written order, determines to be a convention to which this Part applies.
(1) Nothing in this section affects or restricts the lawfully designated role of any other Government Ministry or agency in relation to a convention to which this Part applies.
(2) The roles of the Ministry in relation to a convention to which this Part applies includes all of the following-
- (a) making arrangements for the attendance at any meeting of the Parties of a Convention, and other relevant meetings, of a suitably qualified person to represent the interests of the Cook Islands:
- (b) liaising with relevant regional or international bodies to ensure that the representation of the Cook Islands at any meeting concerning a convention is informed and effective:
- (c) assisting any other Government Ministry or agency, or Committee established under this Act, to implement any aspect of a convention:
- (d) acting as focal point or contact point, or as the designated authority (by whatever titles these roles may be known under any convention):
- (e) preparing any necessary Report, and reporting on a regular basis to the Minister and Cabinet in relation to the implementation of any convention:
- (f) sharing information and otherwise providing such cooperation as is required by any convention:
- (g) recommending that any law of the Cook Islands be amended or enacted in order to effectively implement any requirement of a convention; and
- (h) doing any other act or thing (in conjunction with any other relevant Government Ministry or agency) to implement any obligation under a convention.
(3) The Ministry has the power to do all things and take any actions which are necessary for or incidental to the proper and effective discharge of its roles under this Part.
(1) If a convention to which this Part applies requires that any report be made, or that any information or data be collected and provided, the Minister may make a written request to any person to provide relevant information or data.
(2) A person to whom a written request has been made under sub-section (1) who, without reasonable justification, refuses or fails to comply with the request, commits an offence and is liable on conviction to a fine not exceeding $500.
(1) The Queen's Representative, by Order in Executive Council, may make such regulations as are necessary for the purpose of giving effect to a convention to which this Part applies and for enforcing such a convention within Cook Islands.
(2) Without limiting the generality of subsection (1), regulations made under this section may make provision for all of the following—
- (a) adopting and applying any definition applying under a convention:
- (b) applying any necessary enforcement procedure or mechanism to fully and effectively enforce requirements and obligations applying under a convention:
- (c) imposing requirements in relation to all of the following-
- (i) travellers entering or departing from Cook Islands:
- (ii) persons proposing to enter and reside in Cook Islands, either temporarily or permanently:
- (iii) any aircraft, ship or vessel of any kind, and any other means of conveyance, which is entering, remaining in or departing from Cook Islands, or is proposing to enter, remain in or depart from Cook Islands:
- (d) applying screening technology and other devices to effectively monitor and investigate any matter to which a convention relates:
- (e) authorising or requiring the treatment of any person, baggage, conveyance, matter or thing to which a convention relates:
- (f) empowering the tracing of any infection or disease by ascertaining the persons with whom a person who is infected, or is believed to be infected, has had contact:
- (g) requiring any person to be detained in an appropriate medical facility and in accordance with the requirement of the International Health Regulations, or to undergo medical examination or treatment for the purposes of containing disease or infection:
- (h) authorising any other act by the Ministry and its officers to promote capacities for the rapid response and containment at the source of disease, and for controlling disease spread at borders:
- (i) otherwise dealing with existing and new diseases, including emergencies caused by non-infectious disease agents:
- (j) promoting a risk-based approach to dealing with infection, contamination and disease:
- (k) providing for notifications to be given as required by a convention:
- (l) authorising and applying any other procedure or requirement to facilitate the detection, assessment, notification and reporting of health related events, and to respond promptly and effectively to public health risks as required by a convention:
- (m) enforcing requirements to keep entry point facilities in a sanitary condition:
- (n) ensuring the observance of human rights in relation to any process or requirement, or the exercise of any power under regulations:
- (o) vesting responsibilities and empowering any other Government Ministry or agency in relation to the application and enforcement of a convention in Cook Islands, including responsibilities and powers relating to-
- (i) monitoring baggage, cargo, containers, conveyances, goods, postal parcels and human remains:
- (ii) undertaking de-ratting, disinfection, disinfection or decontamination of baggage, cargo, containers, conveyances, goods, postal parcels and human remains or sanitary measures for persons:
- (iii) disseminating information concerning the application of control measures:
- (iv) providing for the removal and safe disposal of any contaminated water or food, human or animal waste, wastewater and any other contaminated matter from an aircraft, ship or other vessel, or any other means of conveyance:
- (v) monitoring and controlling the discharge by ships and other vessels of sewage, refuse, ballast water and other potentially disease-causing matter:
- (vi) ensuring that effective contingency arrangements are in place to deal with an unexpected public health event:
- (p) otherwise dealing with, responding to or minimising the implications of any Public Health Emergency of International Concern as defined or determined by or in accordance with a convention.
Part 6
Protecting the rights of patients
(1) The provisions of this section apply to medical records and other information relating to a patient or user of health services, held by the Ministry and by any health service provider, and any health professional or allied health professional.
(2) The general principles applying to the keeping, use and divulging of medical records and other information relating to a patient or user of health services are as follows—
- (a) the Ministry is entitled to collect information (including information derived from medical records and other information relating to a patient or user of health services) for any purpose relevant to its functions, responsibilities and powers under this Act, and any other law for which the Ministry is responsible:
- (b) patients and users of health services, and their legal guardians and representatives, are entitled to access their medical records, subject to the imposition of a reasonable fee:
- (c) medical records and other information relating to a patient are to be disclosed to any other party only on any of the following grounds-
- (i) the disclosure is to the patient or user, or his or her legal guardian or representative:
- (ii) the patient or user has given written authority for the information to be disclosed:
- (iii) the disclosure is ordered by a court, or relates to an investigation by the police in relation to the commission of an offence:
- (iv) the disclosure relates to a notifiable disease and is required by the Ministry:
- (v) the disclosure of the information is otherwise necessary to prevent or lessen a serious threat to public health or public safety, or to the life or health of the individual concerned or another person:
- (vi) the information must be disclosed in accordance with any law that requires such disclosure, and subject to such procedures or rights of confidentiality as that law imposes:
- (d) information may be divulged by the Ministry to the parents or legal guardians of minors.
(3) The Minister may, by written Order, require any health service provider, and any health professional or allied health professional to disclose medical records or other information obtained in relation to a patient or user of health services, if such information relates to any of the following—
- (a) abuse, malnourishment or neglect of a child:
- (b) abuse, malnourishment or neglect of an elderly or infirm person:
- (c) sexual abuse or sexual assault of a person:
- (d) a non-accidental injury:
- (e) a sexually transmitted infections:
- (f) HIV infection or other notifiable disease:
- (g) any disease or medical condition for which the Ministry maintains a registry:
- (h) a mental illness.
(4) Information disclosed under subsection (3) must be kept confidential, and may only be disclosed by the Ministry in accordance with subsection (2).
(5) Legal rights of confidentiality and privilege relating to medical records and other information relating to a patient or user of health services are subject to the provisions of this Part.
(1) This section applies to persons who are all of the following—
- (a) they must be under the care of the Ministry at a health facility:
- (b) they must have been determined by the Head of Ministry to be vulnerable by reason of their age or infirmity:
- (c) their well-being or property must have been considered to be at risk by reason of the actions of any other person who is not acting with lawful authority.
(2) Despite the provision of any other law, the Ministry may exercise any of the following powers in relation to a person to whom this section applies—
- (a) action may be taken to prevent the removal of the person from the health facility until the Head of Ministry is satisfied that proper arrangements have been made to protect the health and well-being of the person:
- (b) action may be taken to secure and protect any property of the person held at the health facility until any of the following apply-
- (i) the person has given full and informed consent for the property to be dealt with in any specific manner:
- (ii) arrangements have been made to the satisfaction of the Head of Ministry to protect the property and the rights of the person relating to it:
- (iii) a person is duly appointed to have lawful control of the affairs and interests of the person.
(1) In addition to any functions and powers under other laws for which the Ministry is responsible, the Ministry may take all action which is necessary to ensure that drugs, pharmaceutical products and therapeutic products are effective and beneficial, and to prevent or minimise risks or dangers to human health and safety from such products.
(2) Without limiting the generality of subsection (1), when exercising its powers under this section the Ministry may do all or any of the following—
- (a) impose and enforce standards, rules, operating procedures, guidelines or codes of practice under section 16:
- (b) exercise any powers of enforcement under section 19:
- (c) issue and enforce any notice under sections 20 or 21.
(1) The Ministry must establish and implement a system for receiving and dealing with complaints concerning—
- (a) the provision of any health service which breaches any law or approved standard:
- (b) any issue of unethical or incompetent behaviour by a health professional or allied health professional, or health service provider:
- (c) the standard, quality or effectiveness of any drug, pharmaceutical product or therapeutic product:
- (d) the use of misuse of medical records and information concerning patients and users of health services.
(2) The Ministry must take all such action as is necessary to investigate, address and resolve a complaint made under this section, and ensure that relevant complaints are referred to the appropriate authorities, including any relevant professional body and any other government Ministry or agency which has legal authority relating to the matter under complaint.
Part 7
General and miscellaneous provisions
(1) The Head of Ministry has authority to approve forms for any purpose associated with the functions and powers of the Ministry under this Act and any other law, and any form approved by the Head of Ministry is deemed to be a prescribed form as required by any law administered by the Ministry, if no such form has been prescribed under that applicable law.
(2) Despite the provision of any other law to the contrary, the Minister may approve fees and charges for all of the following—
- (a) any service provided by or on behalf of the Ministry under this Act:
- (b) any licence, registration, permit or certificate issued or given by or on behalf of the Ministry under this Act or any other law for which the Ministry is responsible:
- (c) any inspection or certification undertaken or given by the Ministry in the exercise of its regulatory functions or powers:
- (d) any other matter or thing associated with the functions and powers of the Ministry under this Act or any other law for which the Ministry is responsible, if no such fee or charge has been prescribed under that Act or other law.
(3) The Ministry may develop and apply system of charges for health services provided by it based on "user pays" principles, and in order to be able to effectively apply the system applied under this subsection the Ministry is authorised to do all of the following—
- (a) to require the production of a patient's passport or other means of identification:
- (b) to hold a patient's passport or other identification document until outstanding fees are paid:
- (c) to notify border control authorities of any outstanding fees and to request that the person owing the fees be prevented from leaving Cook Islands until all outstanding fees have been paid, or other arrangements for payment to the satisfaction of the Head of Ministry are agreed to:
- (d) to exempt elderly and infirm patient's from payment of fees if they are unable to meet the cost of the health services provided:
- (e) to make a claim on the estate of any deceased patient for any fees unpaid by that patient.
(4) Despite the provision of any other law to the contrary, the Minister may, at the request of a professional body lawfully exercising powers relating to health professionals or allied health professionals, approve any fees and charges to be imposed in relation to the registration, certification, examination (including any required course of instruction or continuing education program), or right of practice of any health professional or allied health professional.
(5) Any fees or charges approved under this section apply from the date they are approved, and replace any fee or charge imposed for that matter prior to the approval being given under this section.
(6) The Minister may direct the Ministry to display any approved fees and charges in any manner, or to give written notification of approved fees and charges to specified persons, but the failure to make such a display or to give a notification does not affect the validity of the fees and charges imposed by the Ministry or professional body.
(7) All fees and charges imposed and collected by the Ministry or any professional body regulating health professionals prior to the commencement of this Act are deemed to have been validly fixed, imposed and collected despite the provision of any law to the contrary.
(8) No action shall lie against the Ministry, a professional body or the Government in relation to any fee or charge imposed and collected by the Ministry or a professional body prior to the commencement of this Act.
(1) The indemnities and protections provided for by the section apply to all of the following—
- (a) the Minister:
- (b) all officers and employees of the Ministry:
- (c) all inspectors and enforcement officers appointed under this Act:
- (d) all members of committees and boards established under section 9:
- (e) all persons acting under the authority of the Ministry (including persons acting under delegated authority), for the purposes of implementing this Act, or any other law for which the Ministry is responsible:
- (f) all members of professional committees or boards lawfully responsible for the management and regulation of health professionals or allied health professionals.
(2) The persons referred to in subsection (1) are not subject to any action, liability, claim or demand for any matter or thing done or omitted to be done in good faith (whether negligently or not) in the performance or purported performance of any function or duty, or exercise or purported exercise of any power under this Act, or any other law for which the Ministry is responsible.
(3) No person or body exercising authority under this Act or any other law relating to the regulation of health professionals or allied health professional is liable for any loss or damage suffered by any person arising from any act or omission done in relation to the registration and discipline of healthcare professionals or allied health professionals in accordance with law.
(1) The powers of the Ministry under this Act are in addition to and do not derogate from any right to exercise a power under any other law, and if a power may be exercised under both this Act and any other law, then the person lawfully vested with such powers may elect which power he or she will exercise to enforce this Act or any other law for which the Ministry is responsible.
(2) The Ministry must act in collaboration with any other government Ministry or agency which has lawful responsibility for any matter which may impact upon human health, and nothing in this Act affects the exercise by another government Ministry or agency of a health related function or power under law, unless this Act makes specific provision to the contrary.
(3) If any Act or Regulations dealing with the management of a health profession make provision for the role and authority of a Registrar, then despite any provision of a law to the contrary, such a role may be performed and the relevant powers may be exercised, by an employee of the Ministry appointed for such purposes and entitled to act as such under any Regulations made under this Act.
(1) The penalties for offences against laws for which the Ministry is responsible, as stated in Columns 1 and 2 of the Schedule, are as prescribed by Column 3 of the Schedule.
(2) The provisions of the laws referred to in subsection (1) are deemed to be amended accordingly.
The Ministry of Health Act 1995-1996 is hereby repealed.
(1) The Nurses Act 1986 is amended by—
- (a) deleting the definition of "Registrar" from section 2(1), and substituting the following definition—
- Registrar means an employee of the Ministry appointed to perform the role of Registrar":
- (b) deleting section 3(1)(e) and substituting the words "the Registrar":
- (c) adding the following paragraph to section 4(1)—
- "(f) implement any regulations made under the Ministry of Health Act in relation to the procedures applicable to the registration and discipline of health professionals."
(2) The Medical and Dental Practices Act 1976 is amended by—
- (a) inserting the following definition in section 2—
- Registrar means an employee of the Ministry appointed to perform the role of Registrar":
- (b) deleting section 6(1)(a):
- (c) deleting section 16 and substituting the following—
- "16. Registration and practising certificates
- All applications for registration and for the issue of practising certificates to registered practitioners are to be dealt with by the Council in accordance with regulations made under the Ministry of Health Act.":
- (d) deleting the words "Secretary to the Council" wherever they appear in section 19 and replacing it with the word "Registrar":
- (e) deleting the word "Secretary" wherever it appears in sections 17 and 21 and replacing it with the word "Registrar":
- (f) deleting the words "Secretary to the Council in the Cook Islands gazette" in section 20A(1) and replacing it with the words "Registrar as directed by the Council":
- (g) by adding section 26(6) as follows—
- "(6) The requirements of this section are in addition to any requirement to hold a practising certificate under any law"; and
- (h) by deleting section 28 and substituting the following—
- "Persons registered under this Act are subject to the disciplinary procedures and powers provided for in Regulations made under the Ministry of Health Act."
(1) The Queen's Representative, by Order in Executive Council, may make such regulations as are necessary for the purpose of giving effect to any function or power of the Ministry under this Act, and for any other purpose which is related or incidental to any provision of this Act.
(2) Without limiting the generality of subsection (1), regulations made under this section may make provision in relation to any of the following—
- (a) the improvement, promotion and protection of human health:
- (b) the inspection, cleansing, purifying, disinfection, fumigation and isolation of ships and other vessels, aircraft, houses, buildings, yards, conveyances, drains, sewers, public places, and any object or thing:
- (c) the destruction of insanitary things, or any matter or thing which may cause disease or the spread of disease:
- (d) the vaccination of persons for the prevention to diseases, (including measures to require that immunisation be administered when the national interest requires it), and the adoption of any measure for the prevention and mitigation of disease:
- (e) the provision of medical aid, transport, accommodation and curative treatment of the sick, and any other matter or thing for the protection of the rights of sick persons, and persons under the care of the Ministry at a facility managed by the Ministry:
- (f) the transportation or disposal of the dead:
- (g) the isolation, disinfection and treatment of persons suffering from any infectious disease, or who is displaying the symptoms of an infectious disease:
- (h) the isolation or medical observation of any of the following persons-
- (i) persons suspected to be suffering from any infectious disease:
- (ii) persons in charge of or in attendance on persons suffering, or suspected to be suffering, from any infectious disease:
- (iii) persons who have been, or are suspected as having been, exposed to any infectious disease:
- (i) the prevention of the spread of any infectious disease by persons who are contacts or carriers, and the keeping of such persons under medical surveillance, and the restriction of the movements and the preventive treatment of such persons:
- (j) prescribing the period of incubation for any infectious disease:
- (k) the clinical, chemical, bacteriological and other examinations and investigations necessary to determine whether any person is suffering from or carrying any infectious disease, and whether such persons have ceased to be infected or to carry the infection:
- (l) the closing of schools and other institutions, or the regulation or restriction of attendance at such places to prevent or restrict the spread of any infectious disease, or to otherwise protect the health and wellbeing of persons in such places:
- (m) prescribing the duties of parents or guardians of children who are suffering from, or who have recently suffered from or been exposed to, any infectious disease, and the duties of persons in charge of schools were such children attend:
- (n) regulating or restricting the attendance of any person at any place of recreation or other public place at to prevent the spread of disease, and prescribing the provision of any facility, matter or thing at such places to prevent disease or the spread of disease:
- (o) notifications of diseases by medical practitioners and other persons:
- (p) any additional enforcement powers and procedures for the effective implementation of this Act and any other law for which the Ministry is responsible:
- (q) any additional rights and obligations relating to medical records and information concerning patients and user of health services:
- (r) regulating the importation, sale, exchange, supply, use or disposal of therapeutic products, including needles and syringes (whether new or used), including giving powers to the Head of Ministry in relation to approvals for, and standards required of, regulated therapeutic products, needles and syringes (including their packaging and labelling):
- (s) regulating any specific area of medicine and the provision of health services, including obstetric practice and the provision of palliative care:
- (t) dealing with all issues relevant to mental health, including imposing requirements for mental health assessments to be done, ordering that treatment be applied (with or without restrictions on the residence and movement of the person assessed to be in need of treatment), and orders for the protection and management of property belonging to persons suffering from mental disability or incapacity:
- (u) promoting and applying uniform processes and requirements relating to the registration and discipline of health professionals and allied health professionals by the Councils, Boards and Committees lawfully charged with such responsibilities, and all other matters necessary for or incidental to the effective regulation and management of such health and allied professions and professionals:
- (v) to facilitate the collection of fees and charges for services provided by the Ministry:
- (w) prescribing offences for breaches of any regulation, and penalties for such breaches, which may be fines not exceeding $50,000 or terms of imprisonment not exceeding 12 months, or both.
(1) Any reference in any law or legal document—
- (a) to the repealed Act or to any other Ministry of Health Act, is deemed to be a reference to this Act:
- (b) to the Ministry of Health, is deemed to be a reference to the Ministry of Health continued under this Act:
- (c) to the Secretary of Health, the Director-General of Health or any other expression describing the head of the Ministry responsible for health in the Cook Islands, is deemed to be a reference to the Head of Ministry under this Act.
(2) All appointments, contracts, approvals, registrations, certificates or legal proceedings of any description made, entered into, granted, issued or commenced under the repealed Act, are saved and deemed to have been validly done under the authority of this Act.
________________________
s 36
Schedule
Amendments to penalties under other laws for which the Ministry is responsible
| Column 1 The Act | Column 2 The Offence Provision | Column 3 The revised penalty |
| 1. Public Health Act 2004 | Section 142(j)(i) | $10,000 and $1,000 for every day the offence continues |
| 2. Public Health Act 2004 | Section 142(j)(ii) | $50,000 and $5,000 for every day the offence continues |
| 3. Food Act 1992-1993 | Section 20(6) | $10,000 and $1,000 for every day the offence continues |
| 4. Food Act 1992-1993 | Section 36(1)(a) | $5,000 |
| 5. Food Act 1992-1993 | Section 36(1)(b) | $10,000 |
| 6. Food Act 1992-1993 | Section 36(2) | $20,000 |
| 7. Food Act 1992-1993 | Section 38(3) | $25,000 |
| 8. Medical and Dental Practices Act 1976 | Section 20 | Fine of $10,000 or to imprisonment for a term not exceeding 3 years, or both |
| 9. Medical and Dental Practices Act 1976 | Section 22 | $200 |
| 10. Medical and Dental Practices Act 1976 | Section 24 | $10,000 |
| 11. Medical and Dental Practices Act 1976 | Section 26(5) | $5,000 and $100 for every day the offence continues |
| 12. Medical and Dental Practices Act 1976 | Section 28(5)(b) | $10,000 |
| 13. Nurses Act | Section 6(1)(b) | $1,000 |
| 14. Nurses Act | Section 7 | $1,000 |
This Act is administered by the Ministry of Health.
Printed under the authority of the Cook Islands Parliament - 2013.
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