The Health Practitioners Disciplinary Tribunal at a glance

We’re often asked what the Health Practitioners Disciplinary Tribunal does, how it fits into the disciplinary process and what part Council plays in its processes.

Perhaps the key thing to be aware of is that the Tribunal is completely independent of the Council.

Below, we’ve prepared a quick summary of the function and processes of the Tribunal.

Function

The Health Practitioners Disciplinary Tribunal is an independent body established under Part 4 and Schedule 1 of the Health Practitioners Competence Assurance Act 2003. It hears and determines charges against all types of health practitioners covered by the Act. The Tribunal is completely independent of the responsible authorities created by the Act, including the Council.

Current composition

The Tribunal panel comprises a Chair, two Deputy Chairs (all of whom are lawyers who have been practising for at least 7 years) and registered health practitioners and lay members. All members are appointed by the Minister of Health.

When the Tribunal sits to hear and determine any matter, it sits with a presiding Chair (or Deputy Chair) and four members. Of the four members, three are health practitioners from the same area as the respondent health practitioner, and one is a lay member.

There are 29 doctors (or medical practitioners) available to sit on the Tribunal.

Appointment and membership

The Chair and Deputy Chairs are appointed for a 3-year term and serve no more than 9 consecutive years. Appointments are gazetted.

Tribunal members are appointed for a 5year term and there is no limit to the number of consecutive years. Appointments are not gazetted.

Who's covered by the Tribunal?

There are 23 categories of health practitioners within the Act:

Chiropractors, Dentists, Dental Therapists, Dental Hygienists, Dental Technicians, Clinical Dental Technicians, Oral health therapists, Dietitians, Dispensing Opticians, Optometrists, Medical Practitioners, Medical Laboratory Scientists, Medical Laboratory Technologists, Medical Radiation Technologists, Midwives, Nurses, Occupational Therapists, Osteopaths, Pharmacists, Physiotherapists, Podiatrists, Psychologists, and Psychotherapists.

Charges

'Charges' are filed by the prosecuting body and set out the basis for the allegation of misconduct. They are filed by a Professional Conduct Committee (PCC) or the Director of Proceedings (from the HDC). In the Council’s case, the PCC prosecutes a charge independently from oversight or influence from the Council. If a penalty is imposed, then the Council is responsible for its implementation.

Public hearings

Although the Tribunal has the power to restrict publication and hold hearings in private, the emphasis is on public hearings. The Tribunal can make various orders restricting the public nature of the hearing, including ordering that the whole or part of the hearing be heard in private and suppressing publication of the name or particulars of any person, including the doctor. The Tribunal can also use various measures to assist witnesses in giving their evidence including a physical screen between them and the health practitioner and giving evidence using CCTV or an AVL link.

Procedures

The Tribunal can regulate its own procedures. However, the procedures must accord with the rules of natural justice. Each party must be given a fair opportunity to present their evidence and call relevant witnesses. The Tribunal may receive as evidence any statement, document, information or matter that may help it deal effectively with the matters before it, whether or not it would be admissible as evidence in a court of law.

Findings

The Tribunal may find that the doctor has:

  • been guilty of professional misconduct because of an act or omission that amounted to malpractice or negligence in relation to the doctor’s registered scope of practice when the conduct occurred
  • been guilty of professional misconduct because of an act or omission that has brought or was likely to bring discredit to the medical profession
  • been convicted of an offence that reflects adversely on the doctor’s fitness to practise (convictions for offences against relevant health Acts, including the Contraception, Sterilisation and Abortion Act, Coroners Act, Medicines Act, Injury Prevention, Rehabilitation, and Compensation Act and Misuse of Drugs Act or for an offence punishable by a term of 3 months’ imprisonment or longer)
  • practised their profession while not holding a current practising certificate
  • performed a health service without being permitted to perform that service by their scope of practice
  • failed to observe any conditions included in their scope of practice
  • breached a penalty order of the Tribunal.

Penalties

When fixing a reasonable and proportionate penalty, the Tribunal balances the aggravating and mitigating factors in the case. To ensure there is consistency in the penalties imposed, the Tribunal also considers previous relevant cases. In imposing penalties, the Tribunal is guided by a number of factors including protection of the public, deterrence, setting professional standards, punishment, rehabilitation of the health practitioner, consistency with similar cases, the seriousness of the misconduct, and imposing the least restrictive penalty in the circumstances. The overall penalty is fair, reasonable and proportionate in the circumstances.

The penalties available to the Tribunal if a doctor is found guilty are cancellation of the doctor’s registration, suspension of the doctor’s registration for up to 3 years, the imposition of conditions on practice for up to 3 years, censure and a fine of up to $30,000.

Decisions/orders

All orders and decisions are published on the Tribunal’s website. Once a written decision is released, the Tribunal’s role is finished unless the Tribunal is required to revisit the decision by the Court. Appeals of Tribunal decisions are to the High Court.

Appeals

Appeals must be filed within 20 working days from the date of the Tribunal’s decision. Unless a court orders otherwise, the penalties imposed by the Tribunal stay in force pending the outcome of an appeal. Appeals against decisions of the Tribunal are to the High Court, whose decision is final on all matters except points of law, which may be appealed to the Court of Appeal.

Links

Also in this edition of Medical Council News