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Britt, Anthony --- "Complaints against health practitioners in NCAT: Procedural fairness" [2019] PrecedentAULA 13; (2019) 150 Precedent 48

COMPLAINTS AGAINST HEALTH PRACTITIONERS IN NCAT

PROCEDURAL FAIRNESS

By Anthony Britt

The Health Practitioner Regulation National Law (NSW) (the National Law) provides for the registration^[1] as well as the disciplining of health practitioners.^[2] Health practitioners are defined as people engaged in the medical profession.^[3]

COMPLAINT

Any person can make a complaint^[4] about a registered health practitioner who:

(a) has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence;

(b) has allegedly engaged in unsatisfactory professional conduct or professional misconduct;

(c) is not competent to practise the practitioner’s profession;

(d) has an impairment;

(e) is otherwise not a suitable person to hold registration in the practitioner’s profession.^[5]

Complaints may be made to the relevant Council.^[6] The Council must, as soon as practicable after a complaint is made, notify the NSW Health Care Complaints Commission (the Commission) and the National Board^[7] for the health profession in which the registered health practitioner or student is registered.

Complaints may also be made directly to the Commission by the following persons:^[8]

(a) a client;

(b) parent/guardian of the client concerned;

(c) a person chosen by the client concerned as her/his representative (including an Australian legal practitioner) for the purpose of making the complaint;

(d) a health service provider;

(e) a Member of Parliament;

(f) the Health Secretary; and

(g) the Minister.^[9]

A complaint, other than a complaint made by a Council or the Secretary, must be in writing and contain particulars of the allegations on which it is founded.^[10]

Complaints are to be dealt with expeditiously^[11] and the Council and the Commission must consult to see if they can reach agreement as to the course of action to be taken concerning the complaint before any action is taken.^[12]

A complaint need not be made in terms that are strictly consistent with the terminology of ss144 or 144A of the National Law.^[13] A Council or the Commission may consider and investigate a complaint that does not comply with the requirements of sub-s144D(1) but must not refer the complaint under Subdivision 2 until the requirements are met.^[14]

COMPLAINT-HANDLING

Medical Council

In considering a complaint the Medical Council may:^[15]

(a) make any inquiries about the complaint it thinks appropriate;

(b) refer the complaint to the Commission for investigation;

(c) refer the complaint to the NSW Civil and Administrative Tribunal (the Tribunal);^[16]

(d) refer the complaint to a Committee^[17] of the Council;

(e) refer the practitioner for a health assessment or to an Impaired Registrants Panel or for a performance assessment;

(f) refer the complaint to another entity, including, for example, a National Board; or

(g) determine that no further action should be taken in respect of the complaint.

Health Care Complaints Commission

The Commission must, on receipt of a complaint referred by a Council for investigation, investigate the complaint or cause it to be investigated.^[18]

When a complaint about a registered health practitioner is made to the Commission it can:^[19]

(a) refer the complaint to the relevant Council or, after consultation with a Council, to a Committee of the Council or the Tribunal;^[20]

(b) refer the complaint for conciliation or deal with the complaint under Division 9 of Part 2 of the Health Care Complaints Act 1993 (NSW) (Health Care Complaints Act);

(c) refer the complaint to another entity, including, for example, a National Board;

(d) determine that no further action should be taken in respect of the complaint; or

(e) take any other action that it can take under the Health Care Complaints Act.

General

The Medical Council and the Commission must refer a complaint to the Tribunal if either forms the opinion that it may, if substantiated, provide grounds for suspending or cancelling a health practitioner’s or student’s registration.^[21]

If the Medical Council decides not to refer the complaint to the Tribunal, it must instead refer the complaint to a Committee or Impaired Registrants Panel.^[22] If the Commission decides not to refer the complaint to the Tribunal, it must instead refer the complaint to the Council.^[23]

A complaint is not to be referred where the practitioner is dead^[24] and need not be referred where the practitioner is no longer registered.^[25] However, the mere fact that a health practitioner is no longer registered does not prevent their registration from being cancelled or suspended, or prevent them from being disqualified from practice in the health profession for a specified period or until specified conditions have been met.^[26] Further, in such circumstances orders to caution, reprimand, counsel, etc, can also be made.^[27] Where a practitioner is no longer registered, the Tribunal may decide not to conduct an inquiry^[28] if it is satisfied that it is not in the public interest to continue.^[29] Determining what is in the public interest in continuing an inquiry is guided by the objects and overarching principles of the National Law.

The consideration and investigation of complaints made to the Commission is governed by the Health Care Complaints Act and in particular Part 2 of that Act.

Following determination of an investigation, the Commission must do one or more of the following:^[30]

(a) refer the complaint to the Director of Proceedings of the Commission (the Director);

(b) refer the complaint to the appropriate Council (if any) to consider taking action under the National Law, such as referring the health practitioner for performance assessment or impairment assessment;

(c) speak to the health practitioner about the subject of the complaint;

(d) terminate the matter;

(e) refer the matter to the Director of Public Prosecutions; or

(f) make an order –

i. prohibiting the health practitioner from providing health services or specified health services for the period specified in the order or permanently (a prohibition order)^[31]; or

ii. placing such conditions as the Commission thinks appropriate on the provision of health services or specified health services by the health practitioner for the period specified in the order or permanently; or

iii. causing a public statement to be issued in a manner determined by the Commission identifying and giving warnings or information about the health practitioner and health services provided by the health practitioner.^[32]

The Commission must provide written reasons for such orders,^[33] which may be subject to review by the Tribunal.^[34]

When considering complaints referred by the Commission, the Director must determine whether the complaint should be prosecuted before a disciplinary body and, if so, whether it should be prosecuted by the Commission or referred to another person or body for prosecution.^[35] The Director may at any time consult with a professional council, and must consult with the appropriate professional council (if any) before determining whether or not a complaint should be prosecuted before a disciplinary body.^[36]

As part of that investigation pathway, the Commission has a discretion to refer that ‘complaint’ to the Tribunal^[37] (albeit serious complaints may need to be referred to the Tribunal^[38]). Section 90C of the Health Care Complaints Act makes it plain that the Director is not concerned with the form of the complaint but with the ‘alleged conduct’. The effect of both ss145C and 145D of the National Law is that a complaint is referred to the Tribunal.

NATURE OF PROCEEDINGS BEFORE THE TRIBUNAL

The Tribunal, when exercising functions in proceedings that are entered in the Health Practitioner List, operates according to the National Law.^[39] The Tribunal is to be constituted by:

• One Division member who is an Australian lawyer of at least seven years' standing;

• Two health practitioners selected for appointment by the Council as occasional members who are registered in the same health profession as the practioner; and

• One lay person (that is, a person who is not registered in the health profession).^[40]

The Tribunal is intended to function as an expert body dealing in a practical manner with problems faced in the practice of medicine.^[41]

Section 36(1) of the Civil and Administrative Tribunal Act 2013 (Cth) (CAT Act) establishes a guiding principle for the Tribunal in describing its functions:

‘The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.’

Section 36(2) states that the Tribunal must seek to give effect to the guiding principle when it exercises any power given to it by the CAT Act.

Section 38 governs the procedure to be adopted by the Tribunal ‘generally’.

Proceedings before the Tribunal are referred to as an ‘inquiry’ by the National Law.^[42] The Tribunal’s work is more of an inquisitorial model.^[43] The Tribunal must ‘act with as little formality as the circumstances permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms’.^[44]

PROCEDURAL FAIRNESS GENERALLY

As stated by McColl JA (with whom Beazley and Giles JJA agreed) in Nominal Defendant v Saleh:^[45]

‘“Procedural unfairness”is a convenient description of the appellant's complaint that the primary judge's approach denied it a fair trial. The appellant's complaint may also be expressed as raising a “question of practical fairness and justice” (Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 (at [4]) per Giles JA) or a requirement of “fair play and commonsense”: Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; (2007) 17 VR 492 (at [32]) per Chernov JA (Warren CJ agreeing) citing Jobst v Inglis (1986) 41 SASR 399 per Jacobs J.’

When an order is to be made that will deprive the person of some right or interest, they are entitled to know the case against them and to be given an opportunity to reply to it.^[46] The doctrine of procedural fairness clearly applies in these types of matters before the Tribunal. The practitioner should be given the opportunity to be heard as to whether an adverse finding should be made.^[47] This would ordinarily require that the practitioner be given an opportunity to ascertain the relevant issues^[48] and be informed of the nature and content of any adverse material.

Procedural fairness must accommodate the particular legislative provisions which regulate how the Tribunal carries out its task.^[49] The proceedings before the Tribunal are governed by s38 of the CAT Act. By s38(2) the Tribunal may inform itself on any matter in any manner it thinks fit, subject to the rules of natural justice. By its terms the provision requires the procedures adopted by the Tribunal to conform to the requirements of procedural fairness.^[50] Section 38(5)(c) of the CAT Act requires that the Tribunal is to take such measures as are ‘reasonably practicable’ to ensure that the parties have ‘a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings’.

When a decision on a question of law will affect the nature and range of the factual matters in issue to be decided, considerations of fairness require that the parties be given an opportunity to lead evidence and make submissions by reference to the principles of law to be applied.

Procedural fairness in the Tribunal requires that a party be given ‘a reasonable opportunity to present his case’. In Lucire v Health Care Complaints Commission^[51] Basten JA (with whom McColl JA and Sackville AJA agreed) made the following observations about a reasonable opportunity to be heard:

‘...the Commission's submission that procedural fairness merely requires a reasonable opportunity to present a case, rather than presentation of the case, should be accepted. The practitioner did have an opportunity of which she did not avail herself: however, the question is not whether she had any opportunity, but rather whether she had a reasonable opportunity in all the circumstances of the case. This question requires an assessment of practical and strategic considerations and not merely an assessment of abstract possibilities.’

Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.^[52] When considering what fairness demands in the circumstances, regard must be given to the realities of the situation, not the legalities.^[53]

In CSR Limited v Eddy,^[54] the concept of ‘practical injustice’ was considered by Basten JA (with whom Hodgson and McColl JA agreed). The issue was whether there had been a denial of procedural fairness in circumstances where costs were being assessed and the appellants were not provided with a copy of the costs agreement. Basten JA considered the relevant statutory provisions for assessing costs, concluding at 735[40] that if there was no lost chance of obtaining a different result, then no new trial would be ordered (citing Re Refugee Review Tribunal; Ex parte Aala).^[55] Not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. In reaching that conclusion, at [38], Basten JA said it was not enough for the appellants to show that the costs agreement had not been provided to them for the purpose of making submissions; they needed ‘to establish that the failure to provide them with the costs agreement caused them “practical injustice”’ (emphasis added). Basten JA said that the appellants ‘must demonstrate they have in a practical sense lost an opportunity to make some submission material to the question in issue because they did not have access to the costs agreements’. He referred specifically to a distinction between speculative and actual consequences of unfairness as considered by Callinan J in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam:^[56]

‘...what is fatal to the applicant's claim here is that he was unable to demonstrate that there was any material that he could have put before the respondent which was either not already in the respondent's hands, or which might have influenced the respondent to decide his case differently. That he might have liked to have had a further opportunity to repeat what he had already said, or to advance the same argument differently or more emphatically is not to the point and cannot avail him.’ (emphasis added)

COMPLAINTS IN THE TRIBUNAL

One aspect of natural justice is how a complaint is framed.

Complaints are ‘referred’ to the Tribunal not commenced in it.^[57] The complaint is a summary or distillation of the complaints against a practitioner, formulated as an aide memoire for the benefit of the practitioner and the Tribunal.^[58] Complaints are not pleadings.^[59]

The complaint needs to set out the essential details of that aspect of the allegation that constitutes either unsatisfactory professional conduct and/or professional misconduct.^[60] This allows the health practitioner to be clearly given the opportunity to ascertain the relevant issues and be notified of the nature and content of adverse material.^[61]

In King v HCCC^[62] Handley AJA (with whose reasons McColl JA agreed) analysed the common law duty of fairness as it applies to the Tribunal in dealing with a complaint against a practitioner. His Honour held that a person facing disciplinary action ‘is entitled, at common law, to reasonable notice of the charges against him and an opportunity to answer them’.

In Sabag v Health Care Complaints Commission,^[63] it was noted that the primary function of particulars in the complaint is to apprise the opposite party of the case to be met. ‘There is a special need for particulars in disciplinary proceedings... because of the elements of degree and judgement involved in a finding of professional offence... The particulars of the complaint must specify the conduct relied upon sufficiently to apprise the person not only of the bare facts relied upon but also of those aspects of the conduct relied upon as satisfying the elements of degree and judgment which are involved.’^[64]

In Sabag, the NSW Court of Appeal considered a determination by the Medical Tribunal of NSW (the Medical Tribunal) to deregister a doctor on the basis of findings not particularised in complaints brought against the doctor for unsatisfactory professional conduct. The Medical Tribunal had taken into account that the appellant doctor had deliberately misled the investigating agencies at an earlier time (at [95]). In reviewing whether the Medical Tribunal had denied the appellant doctor procedural fairness, Sperling J had regard to whether the allegations of the non-particularised impugned conduct had been ‘notified or litigated’ at [77]. His Honour had regard to, in that respect, the content of the complaint itself as well as whether the appellant doctor had received notice of the matters the Medical Tribunal had regard to in its ultimate findings during the course of the proceedings. At [116] Sperling J identified that the essential difference between Davies AJA (in the minority) and himself was whether the subject issue, which had not been particularised, had emerged at trial and had been litigated. In Sabag, Sperling J took the view that the non-particularised issue had not been litigated.

A similar approach seems to have been taken by Hodgson JA (with whom Meagher and Stein JJA agreed) in Daskalopoulos v Health Care Complaints Commission^[65] at [51]-[52] where his Honour, by reference to the judgments of Davies AJA and Sperling J in Sabag, expressed the view that ‘minds may reasonably differ when it is suggested that issues outside the particulars have adequately been raised and contested at the hearing’ (at [51]). In the present case he considered that ‘the extent of the difference between the particular and the finding, and the lack of any clear formulation during the hearing of any amended particular or allegation in relation to that particular’ meant that the case before him fell on the wrong side of the line (in other words, it was unsuccessful) (at [53]).

The important aspect of the complaint in s149 of the National Law is its ‘subject matter’. That section provides the jurisdictional gateway for the Tribunal to exercise its disciplinary powers.^[66] The section refers not to proof of the complaint, but to proof of its subject matter. What the subject matter might be will depend upon the matters raised that are relevant to the complaint.^[67]

The subject matter of the complaint may be broader than the individual particulars of it, and include those matters of fact advanced in support of it. That must be so having regard to the overall aims and objectives of the National Law, and the wide procedural powers given to the Tribunal.^[68]

The role of the Tribunal is to conduct an inquiry into a complaint made against a practitioner, informed as it thinks necessary, and to determine any complaint it considers arises on the material before it. The Tribunal is not bound by the way in which a complaint is particularised, or to confine the exercise of its powers to make findings and orders by strict reference to the terms of the complaint as originally advanced.^[69]

If, during the proceedings, it appears to the Tribunal that, having regard to any matters that have arisen, another complaint could have been made against the practitioner concerned – whether instead of or in addition to the complaint which was made and whether or not by the same complainant – the Tribunal may take that other complaint to have been referred to it and may deal with it in the same proceedings.^[70]

Further, in dealing with more than one complaint about a practitioner the Tribunal may have regard to all the evidence before it (whether the evidence arose in relation to a complaint in respect of which the Tribunal is making a finding or any other complaint or complaints in the proceedings) when making a finding that a practitioner is guilty of unsatisfactory professional conduct or professional misconduct.^[71]

This was the factual position faced by the Court in Shuquan Liu v Health Care Complaints Commission^[72] where the Tribunal had found the practitioner ‘guilty’ of unsatisfactory professional conduct on a basis not relied upon by the Commission in both the complaint and how the Commission had conducted the proceedings. The Court found that such a finding was open to the Tribunal.^[73]

Where such a course of action is being considered by the Tribunal, it cannot proceed without warning the practitioner that a finding of unsatisfactory professional conduct might be made on a basis other than that advanced by the Commission.^[74] This possibility must be clearly articulated to the practitioner.^[75] The Tribunal needs to warn the practitioner that the Tribunal did not accept limitation in the complaint to the findings that could be made by the Tribunal.^[76] In such circumstances the practitioner should have been advised of this and invited to call relevant evidence, or make submissions, against that possibility.^[77]

A failure to give such warnings is a denial of procedural fairness.^[78]

CONCLUSION

Even though the Tribunal has very broad powers as to how it conducts its inquiry into a health practitioner under the National Law, it must ensure that the complaint sets out the essential details of that aspect of the allegation that by reason of that conduct, the practitioner has been guilty of either unsatisfactory professional conduct and/or professional misconduct. The health practitioner is to be clearly given the opportunity to ascertain the relevant issues and be notified of the nature and content of adverse material.

The complaint must specify the conduct relied upon sufficiently to apprise the person not only of the bare facts relied upon but also of those aspects of the conduct relied upon as satisfying the elements of degree and judgement which are involved.

The Tribunal is not bound by the way in which a complaint is particularised, or to confine the exercise of its powers to make findings and orders by strict reference to the terms of the complaint as originally advanced.^[79]

Where, during the proceedings, it appears to the Tribunal that, having regard to any matters that have arisen, another complaint could have been made against the practitioner concerned whether instead of or in addition to the complaint which was made and whether or not by the same complainant, the Tribunal may take that other complaint to have been referred to it and may deal with it in the same proceedings.

Where such a course of action is being considered by the Tribunal it cannot proceed without warning the practitioner that a finding of unsatisfactory professional conduct might be made on a basis other than that advanced by the Commission. This possibility must be clearly articulated to the practitioner.

The Tribunal needs to warn the practitioner that it did not accept limitation in the complaint to the findings that could be made by the Tribunal. In such circumstances, the practitioner should have been advised of this and invited to call relevant evidence, or make submissions, against that possibility.

Anthony Britt is a barrister at Sir Owen Dixon Chambers in Sydney. His practice is predominantly in employment and industrial areas and in disciplinary matters before the NSW Civil and Administrative Tribunal. PHONE (02) 8076 6601 EMAIL abritt@sirowendixon.com.au.

^[1] Health Practitioner Regulation National Law (NSW) (the National Law), pt 7.

^[2] Ibid, pt 8.

^[3] Ibid, s5. It also includes persons engaged in the following professions: Aboriginal and Torres Strait Islander health practice, Chinese medicine, chiropractic, dental (including the profession of a dentist, dental therapist, dental hygienist, dental prosthetist and oral health therapist), medical radiation practice, nursing and midwifery, occupational therapy, optometry, osteopathy, pharmacy, physiotherapy, podiatry and psychology.

^[4] Ibid, s144B.

^[5] Ibid, s144.

^[6] Councils are established pursuant to pt 5A of the National Law. The relevant Council for the medical profession is specified in s41B of the National Law to be the Medical Council of New South Wales.

^[7] The National Law, s144G.

^[8] Ibid, s144C and Health Care Complaints Act 1993 (NSW) (Health Care Complaints Act), s8.

^[9] In some limited circumstances the Health Care Complaints Commissioner may also notify a complaint.

^[10] Section 144D of the National Law but an investigation of a complaint may commence without these requirements being met.

^[11] The National Law, s145.

^[12] Ibid, s145A.

^[13] Ibid, s144D(2).

^[14] Ibid, s144D(3).

^[15] Ibid, s145B(1).

^[16] NSW Civil and Administrative Tribunal (NCAT).

^[17] A Council may establish Committees pursuant to s41F of the National Law.

^[18] The National Law, s145B(2).

^[19] Ibid, s145C.

^[20] In NCAT.

^[21] The National Law, s145D. However, if the allegations in the complaint relate solely or principally to the practitioner’s physical or mental capacity to practise, the complaint need not be referred to the Tribunal but to a Committee or Impaired Registrants Panel.

^[22] Ibid, s145D(3).

^[23] Ibid, s145D(4).

^[24] Ibid, s145H.

^[25] Ibid, s145I.

^[26] Ibid, s149C(4).

^[27] Ibid, s149A(3).

^[28] Ibid, cl 12(1)(a)(ii) of sch 5D.

^[29] Health Care Complaints Commission v Duggan [2015] NSWCATOD 142.

^[30] Health Care Complaints Act , s39(1).

^[31] Ibid, s41A.

^[32] Ibid, ss39(1)(g) and 41A.

^[33] Ibid, s41B.

^[34] Ibid, s41C.

^[35] Ibid, s90B(1)(a).

^[36] Ibid, s90B(3).

^[37] The National Law, s145C(1)(a).

^[38] Ibid, s145D.

^[39] Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), cl 13(1), sch 5.

^[40] The National Law, s165B(2).

^[41] As Basten JA said in Prakash v Health Care Complaints Commission [2006] NSWCA 153, [91]: ‘The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted.’ See also Kalil v Bray [1977] 1 NSWLR 356, [261-262] (per Street CJ); Minister for Health v Thomson [1985] FCA 208; (1985) 8 FCR 213, 224.

^[42] The National Law, ss165(2), 165C, 165H, 165I, 165J and 165M and cls 11, 12, 13 of sch 5D.

^[43] Weinstein v Medical Practitioners Board [2008] VSCA 193; (2008) 21 VR 29, [30].

^[44] CAT Act, s38(4).

^[45] [2011] NSWCA 16, [17].

^[46] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 582 (per Mason J).

^[47] Smith v New South Wales Bar Association (1982) 176 CLR 256; [1982] HCA 36, 269 (per Brennan, Dawson, Toohey and Gaudron JJ).

^[48] Szeel v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, [32] (per Gleeson CJ with whom Kirby, Hayne, Callinan and Heydon JJ agreed).

^[49] Veal v The Minister for Immigration, Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88, [10] and King v Health Care Complaints Commission [2011] NSWCA 353 (King v HCCC), [3].

^[50] Sudath v Health Care Complaints Commission [2012] NSWCA 171, [75].

^[51] [2011] NSWCA 99, [61].

^[52] Re Minister for Immigration and Multicultural Affairs, Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1, [37] and King v HCCC, [79]-[81].

^[53] King v HCCC, [9].

^[54] [2008] NSWCA 83; (2008) 70 NSWLR 725.

^[55] [2000] HCA 57; (2008) 204 CLR 82.

^[56] [2003] HCA 6; (2003) 214 CLR 1, [149].

^[57] The National Law, ss145C and 145D.

^[58] King v HCCC, [169].

^[59] Ibid, [4] and [168].

^[60] Ibid, [10].

^[61] Ibid. In a dissenting judgement McFarlane at [63] believed a complaint warranted a high degree of particularity.