In NSW, serious complaints about registered health practitioners can be prosecuted by the Health Care Complaints Commission (HCCC) in two disciplinary forums:
|Forum||Type of conduct alleged||Profession||Forum|
|1||Unsatisfactory professional conduct/clinical care||Medical||Professional standards committee|
|Nursing & Midwifery|
|All other professions (12)||Inquiry of relevant NSW Health Professional Council (HCCC is not a party)|
|2||Professional misconduct or if cancellation or suspension of registration is sought||All professions (14)||Occupational Division of NSW Civil and Administrative Tribunal – Health Practitioner Division List|
What is the role of the HCCC?
The HCCC will have assessed and investigated the underlying complaint before making a recommendation for prosecution (in consultation with the relevant NSW Health Professional Council) to the Director of Proceedings.
The Director of Proceedings must reach their own decision about whether or not to prosecute taking into account:
(a) The protection of the health and safety of the public.
(b) The seriousness of the alleged conduct the subject of the complaint.
(c) The likelihood of proving the alleged conduct.
(d) Any submissions made by the health practitioner concerned.
Steps involved in Prosecution
If the Director of Proceedings decides to prosecute a matter, the Director together with legal officers will:
- Draft the complaint;
- Refer it to the relevant disciplinary body, being either:
- A Professional Standards Committee (for doctors, nurses and midwives) or an Inquiry of the relevant NSW Health Professional Council (for all other practitioners) OR
- New South Wales Civil and Administrative Tribunal (NCAT);
- Present the HCCC’s evidence; and
- Prosecute the complaint before the disciplinary body.
Nature of the proceeding
A health disciplinary proceeding will take place before a four-member panel or Tribunal the composition of which usually comprises one legally qualified member, one community member and two members of the same health profession as the practitioner.
The hearing is usually in public and decisions are usually publicly available, although there is greater discretion for professional standards committee to preserve confidentiality during the process and of the decision. In contrast to the professional standards committee hearings, Council inquiries are not ordinarily public and the HCCC is not a party to them. Practitioners are usually either permitted to or entitled to legal representation.
As with more formal court processes, witnesses may be called and cross-examined and orders may be made requiring documents to be produced. The outcomes following disciplinary prosecution may have serious impacts on a practitioner’s ability to practice.
Outcomes following prosecution
- Cancellation of registration – only for NCAT matters.
- Suspension of registration – only for NCAT matters.
- Prohibition order to ban/limit practice in a related health service – only for NCAT matters.
- Conditions on registration.
- Imposition of fine.
Given the potential impact on livelihood, it is strongly recommended that all practitioners subject to a health disciplinary hearing are legally represented either via professional indemnity insurance or by a legal representative of their choosing.
How can we help?
If you are looking for information or representation during a health disciplinary matter, we can help you navigate the process. Our health law team is highly respected in the area, with specialist knowledge accumulated over 25 years.
*The material provided in our information sheets is for general knowledge only and is not a substitute for independent legal advice. For further information about the issues affecting you, please contact one of our experienced and professional lawyers for expert advice.