Part 4 Complaints and disciplinary proceedings
24 Meaning of “professional misconduct”
For the purposes of this Act, professional misconduct, in relation to a registered podiatrist, means unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the podiatrist’s registration.
25 Meaning of “unsatisfactory professional conduct”
For the purposes of this Act, unsatisfactory professional conduct, in relation to a registered podiatrist, includes any of the following:(a) any conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the podiatrist in the practice of podiatry is significantly below the standard reasonably expected of a podiatrist of an equivalent level of training or experience,(b) a contravention by the podiatrist of a provision of this Act or the regulations or of a condition of the podiatrist’s registration,(c) a failure without reasonable excuse by the podiatrist to comply with a direction by the Board to provide information with respect to a complaint under this Part against the podiatrist,(d) a failure by the podiatrist to comply with an order made or a direction given by the Board or the Tribunal under this Act,(d1) a contravention by the podiatrist of section 34A (4) (Power of Commission to obtain information, records and evidence) of the Health Care Complaints Act 1993,(e) any other improper or unethical conduct by a podiatrist in the course of the practice or purported practice of podiatry.
In section 36 and Divisions 3, 4 and 5 of this Part and Divisions 1 and 2 of Part 6 (Appeals and review of disciplinary action), a reference to a complaint includes a reference to a matter arising out of the investigation of a complaint in accordance with this or any other Act.
(1) A complaint may be made under this Act concerning:(a) the professional conduct of a registered podiatrist, or(b) the provision of a podiatry service by a registered podiatrist.Note. Subsection (1) ensures consistency between this Act and the Health Care Complaints Act 1993 with respect to the kinds of complaints that can be made about registered podiatrists.(2) Without limiting the generality of subsection (1), a complaint may be made that a registered podiatrist:(a) has, either in or outside New South Wales, been convicted of or made the subject of a criminal finding for an offence, and the circumstances of the offence are such as to render the podiatrist unfit in the public interest to be registered as a podiatrist, or(b) is guilty of unsatisfactory professional conduct or professional misconduct, or(c) is not competent to practise podiatry, or(d) suffers from an impairment, or(e) is not of good character.(3) A complaint need not be made in terms that are strictly in accordance with the terminology of this section.(4) In determining for the purposes of this Act whether a podiatrist is of good character regard may be had to conduct of the podiatrist before becoming registered as a podiatrist.
27 Complaint can be made even if person no longer registered
A complaint about a registered podiatrist may be made and dealt with even though the podiatrist has ceased to be registered. For that purpose, a reference in this Part to a podiatrist or registered podiatrist includes a reference to a person who has ceased to be registered or whose registration is suspended.
Any person (including the Board) can make a complaint.
29 Complaints to be made to the Board
Complaints are to be made to the Board and are to be lodged with the Registrar.Note. Complaints may also be made to the Commission.
(1) A complaint must be in writing, must identify the complainant and must contain particulars of the allegations on which it is founded.(2) (Repealed)(3) The Board may consider and investigate a complaint even if it does not comply with the requirements of this section (except the requirement that it identify the complainant) but must not proceed to deal with the complaint under this Part until they are complied with.(4) The Board may require the complainant to provide further particulars of a complaint.
31 Board to notify Commission of complaints
The Board must notify the Commission of any complaint made under this Part and this is to be done as soon as practicable after the complaint is made.
33 Investigation of complaint by Board
The Board may make such inquiries concerning a complaint as it thinks fit.
(1) Before the Board deals with or refers a complaint under this Part, the Board and the Commission must consult in order to see if agreement can be reached between them as to the course of action to be taken concerning a complaint.(2) Division 2 of Part 2 of the Health Care Complaints Act 1993 applies to the consultation and the outcomes of the consultation.
35 How complaints are dealt with
(1) When a complaint is made, the Board may at any time decide:(a) to refer the complaint for investigation by the Commission, or(b) to refer the complaint to the Commission for conciliation or to be dealt with under Division 9 of Part 2 of the Health Care Complaints Act 1993, or(c) to refer the complaint to the Podiatry Standards Advisory Committee under Division 3, or(d) to refer the matter to an Impaired Registrants Panel under Part 5, or(e) to deal with the complaint by inquiry at a meeting of the Board under Division 4, or(f) to refer the complaint to the Tribunal, or(g) to deal with the complaint by directing the podiatrist to attend counselling, or(h) to deal with the complaint by providing advice or making recommendations to the podiatrist, or(i) to decline to deal with or dismiss the complaint.(2) If the Commission recommends to the Board in accordance with the Health Care Complaints Act 1993 that a complaint (whether made under that Act or this Act) be dealt with by inquiry at a meeting of the Board under Division 4, the Board must comply with that recommendation (but only if the complaint is of a kind that can be made under this Act).(3) The Board may decline to deal with a complaint if the podiatrist concerned has ceased to be registered.(4) The Board may decline to deal with a complaint if the complainant fails to provide further particulars required by the Board.(5) A complaint may be withdrawn by the complainant at any time. The Board and the Commission are to consult as to whether the complaint should be proceeded with in the public interest.(6) The Board is to notify the podiatrist of any action taken by the Board under this section.
36 Serious complaints must be referred to Tribunal
(1) Both the Board and the Commission are under a duty to refer a complaint to the Tribunal if at any time either forms the opinion that it may, if substantiated, provide grounds for the suspension or cancellation of the podiatrist’s registration.(2) However, either the Board or the Commission may decide not to refer the complaint to the Tribunal if of the opinion that the allegations on which the complaint is founded (and on which any other pending complaint against the podiatrist is founded) relate solely or principally to the physical or mental capacity of the podiatrist to practise podiatry.(3) If the Board decides not to refer the complaint to the Tribunal, the Board must instead deal with the complaint at a meeting of the Board under Division 4. If the Commission decides not to refer the complaint to the Tribunal, the Commission must instead refer the complaint to the Board.(4) This section does not require the Board or the Commission to refer a complaint that the Board or Commission thinks is frivolous or vexatious.
37 Medical examination of podiatrist
(1) The Board may, before or while taking any action under this Part or Part 5 (Impairment), by notice to the podiatrist concerned, require the podiatrist to undergo an examination at the Board’s expense by a medical practitioner, or other appropriate health professional, specified in the notice, at any reasonable time and place specified in the notice.(2) A failure by a podiatrist, without reasonable cause, to comply with a notice given under this section to undergo an examination is, for the purposes of this Part or any inquiry or appeal under this Part, evidence that the podiatrist does not have sufficient physical and mental capacity to practise podiatry.(3) A medical practitioner or other health professional who conducts an examination under this section is to report to the Board on the results of the examination. The Board is to provide a copy of the report to the podiatrist.(4) A person must not directly or indirectly make a record of or divulge to any person any information contained in a report to the Board under this section that has come to the person’s notice in the exercise of the person’s functions under this Act, except for the purpose of exercising functions under this Act.Maximum penalty: 50 penalty units.
(5) A person cannot be required in civil proceedings in any court to produce or permit access to any report made to the Board under this section or to divulge the contents of any such report.(6) In this section:court includes any tribunal, authority or person having power to require the production of documents or the answering of questions but does not include the Tribunal.
report includes a copy, reproduction and duplicate of the report or any part of the report, copy, reproduction or duplicate.
38 Notification of orders to employer and others
(1) The Board is required to give notice of any order made in respect of a registered podiatrist under this Act, or the placing of conditions on the registration of a registered podiatrist, to the following persons:(a) the employer (if any) of the podiatrist concerned,(b) the chief executive officer (however described) of any public health organisation (within the meaning of the Health Services Act 1997) in respect of which the podiatrist concerned is a visiting practitioner or is otherwise accredited,(c) the chief executive officer (however described) of any private health facility (within the meaning of the Private Health Facilities Act 2007) in respect of which the podiatrist concerned is accredited,(d) the chief executive officer (however described) of any nursing home (within the meaning of the Public Health Act 1991) in respect of which the podiatrist concerned is accredited.(2) The notice is to be given within 7 days after:(a) in the case of an order made or conditions imposed by the Board—the date the order is made or the conditions are imposed, or(b) in any other case—the date the Board is given a copy of the decision of the body that made the order or imposed the conditions.(3) The notice is to include such information as the Board considers appropriate.
Division 3 Referral of complaints to Podiatry Standards Advisory Committee
39 Kinds of complaints that can be referred to Committee
(1) The Board may refer a complaint to the Committee only if the Commission has decided not to investigate the complaint.(2) A complaint may not be referred to the Committee if it is a complaint that the podiatrist is not of good character or has been convicted of or made the subject of a criminal finding for an offence.(3) This section does not operate to limit the Committee in the exercise of its functions under this Division in respect of any matter that arises in the course of the Committee’s investigation of a complaint.
40 How complaints are dealt with
(1) When a complaint is referred to the Committee, the Committee is to investigate the complaint and may in any particular case encourage the complainant and the podiatrist against whom the complaint is made to settle the complaint by consent.(2) The Committee may obtain such podiatry, medical, legal, financial or other advice as it thinks necessary or desirable to enable it to exercise its functions.(3) The Committee may not determine a complaint referred to it except by settlement by consent.(4) The Committee is to make a report to the Board on a complaint referred to it whether or not it is able to effect settlement of the complaint by consent.
41 Skills testing of podiatrist
(1) The Committee may, by notice to the podiatrist who is the subject of a complaint referred to the Committee, require the podiatrist to undergo skills testing at the Board’s expense by an appropriately qualified person specified in the notice, at any reasonable time and place specified in the notice.(2) A failure by a podiatrist, without reasonable cause, to comply with a notice given under this section to undergo skills testing is, for the purposes of this Part or any inquiry or appeal under this Part, evidence that the podiatrist does not have sufficient skill to practise podiatry.(3) The person who conducts skills testing under this section is to report to the Committee on the results of the examination. The Committee is to provide a copy of the report to the podiatrist.(4) A person must not directly or indirectly make a record of or divulge to any person any information contained in a report to the Committee under this section that has come to the person’s notice in the exercise of the person’s functions under this Act, except for the purpose of exercising functions under this Act.Maximum penalty: 50 penalty units.
(5) A person cannot be required in civil proceedings in any court to produce or permit access to any report made to the Committee under this section or to divulge the contents of any such report.(6) In this section:court includes any tribunal, authority or person having power to require the production of documents or the answering of questions but does not include the Tribunal.
report includes a copy, reproduction and duplicate of the report or any part of the report, copy, reproduction or duplicate.
42 Recommendations of the Committee
(1) The Committee’s report to the Board may include such recommendations with respect to the complaint as the Committee considers appropriate, including (without being limited to) any of the following recommendations:(a) a recommendation that the Board deal with the complaint by inquiry at a meeting of the Board as a complaint of unsatisfactory professional conduct,(b) a recommendation that the Board direct the podiatrist to attend counselling,(c) a recommendation that the Board dismiss the complaint.(2) The Board is to provide the podiatrist and the Commission with a copy of the Committee’s report and recommendations as soon as practicable after the report is made.(3) The Board must comply with a recommendation of the Committee that the Board deal with the complaint by inquiry at a meeting of the Board as a complaint of unsatisfactory professional conduct.(4) Otherwise the Board is to allow the Commission and the podiatrist at least 21 days after they have been provided with a copy of the Committee’s report and recommendations to make submissions in respect of the report and recommendations.(5) After considering the Committee’s report and recommendations and any submissions made by the podiatrist or the Commission in respect of the report or recommendations, the Board is to proceed to deal with the complaint as provided by section 35.(6) This section is subject to section 36 (Serious complaints must be referred to Tribunal).
43 No legal representation for parties appearing before the Committee
A complainant and the podiatrist against whom the complaint is made are not entitled to be legally represented at any appearance before the Committee.
Division 4 Dealing with complaint by inquiry at a meeting of the Board
44 Procedures for dealing with complaint at meeting
(1) If the Board decides to deal with a complaint by inquiry at a meeting of the Board, the meeting is to be held in accordance with Schedule 3 and this Division.(2) The Board may be assisted by an Australian lawyer when dealing with a complaint at a meeting of the Board.(3) The Board is to provide the Commission with a copy of any submission made to the Board by the podiatrist in respect of the complaint or in respect of any recommendation of the Committee concerning the complaint.
The procedure for the calling of a meeting to deal with a complaint and for the conduct of the meeting is, subject to this Act and the regulations, to be as determined by the Board.
At a meeting to deal with a complaint, the Board:(a) may inform itself on any matter in such manner as it thinks fit, and(b) may receive written or oral submissions, and(c) is to proceed with as little formality and technicality, and as much expedition, as the requirements of this Act and the proper consideration of the complaint permit, and(d) is not bound by rules of evidence, and(e) may proceed to deal with the complaint in the absence of the podiatrist.
47 Making submissions to inquiry
(1) The podiatrist is entitled to attend the meeting during the course of the Board’s inquiry and to make submissions to the Board.(2) The Committee may, if the Board so requires, make a submission to the Board with respect to the complaint and may for that purpose attend the meeting during the course of the Board’s inquiry.(3) The Board is to afford the Commission the opportunity to make a submission to the Board with respect to the complaint and the Commission may for that purpose attend the meeting during the course of the Board’s inquiry.(4) The Committee or the Commission may not be present at the meeting except while actually making a submission in accordance with this section, unless the Board otherwise determines.(5) Despite subsection (4), the Commission is to be present throughout the Board’s inquiry where the complaint is the subject of a recommendation of the Commission under section 35 (2) that it be dealt with by inquiry at a meeting of the Board under this Division.(6) The podiatrist is not entitled to be legally represented at the inquiry but may be accompanied by a support person. The support person can be an Australian lawyer.(7) The Commission is not entitled to be legally represented at the inquiry.
(1) The Board must, within 30 days of making its decision on a complaint, make available to the complainant, the podiatrist concerned and such other persons as it thinks fit, a written statement of the decision.(2) If the Commission made a submission to the Board with respect to the complaint, the Board is to provide the Commission with a copy of the written statement of the decision.(3) The written statement of a decision must give the reasons for the decision.(4) The Board is not required to include confidential information in any such statement. If a statement would be false or misleading if it did not include the confidential information, the Board is not required to provide the statement.(5) When confidential information is not included in the statement of a decision provided to a person or the statement is not provided to a person because of subsection (4), the Board must give a confidential information notice to the person.(6) A confidential information notice is a notice that indicates that confidential information is not included or that the statement will not be provided (as appropriate) and gives the reasons for this. The notice must be in writing and must be given within one month after the decision is made.(7) This section does not affect the power of a court to make an order for the discovery of documents or to require the giving of evidence or the production of documents to a court.(8) In this section:confidential information means information that:
(a) has not previously been published or made available to the public when a written statement of a decision to which it is or may be relevant is being prepared, and(b) relates to the personal or business affairs of a person, other than a person to whom the Board is required (or would, but for subsection (4), be required) to provide a written statement of a decision, and(c) is information:(i) that was supplied in confidence, or(ii) the publication of which would reveal a trade secret, or(iii) that was provided in compliance with a duty imposed by an enactment, or(iv) the provision of which by the Board would be in breach of any enactment.
49 Admissibility of Board’s findings
A finding of the Board under this Division is admissible as evidence in any legal proceedings.
Division 5 Disciplinary powers of Board and Tribunal
50 Powers may be exercised if complaint proved or admitted
The Board or the Tribunal may exercise any power or combination of powers conferred on it by this Division if the Board (pursuant to an inquiry at a meeting of the Board under Division 4) or the Tribunal finds the subject-matter of a complaint of a kind referred to in section 26 (2) to have been proved or the person admits to it in writing to the Board or the Tribunal.
51 General powers of the Board
(1) The Board may do any one or more of the following:(a) caution or reprimand the person,(b) make an order for the withholding or refunding of part or all of the payment with respect to the fees to be charged or paid for the podiatry services that are the subject of the complaint,(c) order that the person seek and undergo medical or psychiatric treatment or counselling,(d) direct that such conditions relating to the person’s practice of podiatry as it considers appropriate be imposed on the person’s registration,(e) order that the person complete a specified educational course or courses,(f) order that the person report on his or her podiatry practice at specified times, in a specified manner and to specified persons,(g) order that the person seek and take advice, in relation to the management of his or her podiatry practice, from a specified person or persons.(2) If the person is not registered, an order or direction can still be given under this section but has effect only so as to prevent the person being registered unless the order is complied with or to require the conditions concerned to be imposed when the person is registered, as appropriate.
52 Power of the Board to recommend suspension or cancellation of registration
(1) The Board may recommend that the registration of a podiatrist be suspended for a specified period or cancelled if the Board is satisfied (when it finds on a complaint about the podiatrist) that the podiatrist does not have sufficient physical and mental capacity to practise podiatry.(2) If the podiatrist is not registered, a recommendation can be made under this section that the podiatrist not be re-registered.(3) The Board makes its recommendation by referring the matter with its recommendation to the Chairperson or to a Deputy Chairperson nominated by the Chairperson.(4) The Chairperson or Deputy Chairperson may then make an order in the terms recommended or may make such other order as to the suspension or registration of the podiatrist as the Chairperson or Deputy Chairperson thinks proper based on the findings of the Board.(5) An order may also provide that an application for review of the order under Division 3 of Part 6 may not be made until after a specified time.(6) Instead of making an order under this section, the Chairperson or Deputy Chairperson may exercise any power or combination of powers of the Board under this Division.
(1) The Tribunal may exercise any power that the Board can exercise under this Division.(2) The Tribunal may by order suspend a person’s registration for a specified period or direct that a person’s registration be cancelled if the Tribunal is satisfied (when it finds on a complaint about the person):(a) that the person is not competent to practise podiatry, or(b) that the person is guilty of professional misconduct, or(c) that the person has been convicted of or made the subject of a criminal finding for an offence, either in or outside New South Wales, and the circumstances of the offence are such as to render the person unfit in the public interest to practise podiatry, or(d) that the person is not of good character.(3) An order that a person’s registration be cancelled is an order that the person’s name be removed from the Register or (if the person has already ceased to be registered) that the person not be re-registered.(3A) If the Tribunal makes an order under subsection (2) in respect of a person and it is satisfied that the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following:(a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently,(b) place such conditions as the Tribunal thinks appropriate on the provision of health services or specified health services by the person for the period specified in the order or permanently.Note. Section 10AK (1) of the Public Health Act 1991 provides that it is an offence for a person to provide a health service in contravention of a prohibition order.(3B) If the Tribunal is aware that a person in respect of whom it is proposing to make a prohibition order is registered under a health registration Act other than this Act, the Tribunal is, before making the prohibition order, to notify the board constituted under that other Act of the proposed order and give that board an opportunity to make a submission.(4) An order may also provide that an application for review of the order under Division 3 of Part 6 may not be made until after a specified time.
Division 6 Powers of the Board for the protection of the public
54 Suspension or conditions to protect the public
(1) The Board must, if at any time it is satisfied that such action is necessary for the purpose of protecting the life or physical or mental health of any person:(a) by order suspend the registration of a registered podiatrist for such period (not exceeding 8 weeks) as is specified in the order, or(b) impose on a registered podiatrist’s registration such conditions, relating to the podiatrist’s practising podiatry, as it considers appropriate.(2) The Board may take such action:(a) whether or not a complaint has been made or referred to the Board about the podiatrist, and(b) whether or not proceedings in respect of such a complaint are before the Tribunal.
55 Power to remove or alter conditions
The Board may at any time alter or remove conditions imposed under this Division.
56 Referral of matter to Commission
(1) The Board must, as soon as practicable after taking any action under section 54 and, in any event, within 7 days after taking that action, refer the matter to the Commission for investigation.(2) The matter is to be dealt with by the Commission as a complaint made to the Commission against the podiatrist concerned.(3) The Commission is to investigate the complaint or cause it to be investigated and, as soon as practicable after it has completed its investigation, refer the complaint to the Tribunal or to the Board to be dealt with by inquiry at a meeting of the Board under Division 4.(4) Section 36 (Serious complaints must be referred to Tribunal) applies in respect of any such action by the Commission.(5) This section does not apply if the Board takes action against a registered podiatrist under section 54 because the Board is of the opinion that the podiatrist suffers from an impairment.
57 Special provisions—impairment
(1) This section applies if the Board takes action against a registered podiatrist under section 54 because the Board is of the opinion that the podiatrist suffers from an impairment.(2) The Board must, as soon as practicable after taking that action and, in any event, within 7 days after taking that action, notify the Commission that it has taken that action.(3) The Board is to consult with the Commission to see if agreement can be reached as to whether the matter should be:(a) dealt with as a complaint against the podiatrist, or(b) referred to an Impaired Registrants Panel.(4) The matter is to be dealt with as a complaint against the podiatrist only if, following that consultation:(a) the Board and the Commission agree that it should be dealt with as a complaint, or(b) either the Board or the Commission is of the opinion that the matter should be dealt with as a complaint.(5) In such a case, the Board is to refer the matter to the Commission and the matter is to be dealt with by the Commission as a complaint made to the Commission against the podiatrist concerned.(6) The Commission is to investigate the complaint or cause it to be investigated and, as soon as practicable after it has completed its investigation, refer the complaint to the Tribunal or to the Board to be dealt with by inquiry at a meeting of the Board under Division 4.(7) Section 36 (Serious complaints must be referred to Tribunal) applies in respect of any such action by the Commission.(8) If subsection (4) does not apply, the Board is to refer the matter to an Impaired Registrants Panel.(9) A matter may be referred to an Impaired Registrants Panel under this section even though the podiatrist has been suspended under section 54. Part 5 applies in respect of such a referral as if the podiatrist were a registered podiatrist.
58 Tribunal to be notified of suspensions
If the Board suspends the registration of a registered podiatrist under section 54, the Board must notify the Chairperson that it has taken that action as soon as practicable after making the order and, in any event, within 7 days.
A period of suspension imposed by the Board under this Division may be extended, from time to time, by the Board by order for a further period or further periods, each of not more than 8 weeks, but only if:(a) the extension has been approved in writing by the Chairperson or a Deputy Chairperson, and(b) the complaint about the podiatrist has not been disposed of.
On the expiration of a period of suspension imposed under this Division, the person’s rights and privileges as a registered podiatrist are revived, subject to any order of the Tribunal on the complaint that is referred to the Tribunal.
61 Duration of conditions—complaint matters
(1) This section applies if the Board imposes conditions on the registration of a registered podiatrist under section 54 and the matter is dealt with as a complaint against the podiatrist.(2) The conditions imposed by the Board have effect until the complaint about the podiatrist is disposed of, or the conditions are removed by the Board, whichever happens first.(3) This section:(a) does not prevent conditions being imposed under another provision of this Act, and(b) is subject to anything done by the Tribunal on an appeal under section 76.
62 Duration of conditions—impairment matters
(1) This section applies if the Board imposes conditions on the registration of a registered podiatrist under section 54 and the matter is referred to an Impaired Registrants Panel.(2) The conditions imposed by the Board have effect until:(a) the complaint about the podiatrist is disposed of if the matter is subsequently dealt with by the Board as a complaint, or(b) the conditions are removed by the Board,whichever happens first.(3) The Board is not required to alter or remove conditions imposed under this Division merely because a podiatrist agrees to the imposition of conditions on the podiatrist’s registration pursuant to the recommendations of an Impaired Registrants Panel (as referred to in section 71).(4) A registered podiatrist who agrees to the imposition of conditions on the podiatrist’s registration pursuant to the recommendations of an Impaired Registrants Panel may, by notice in writing to the Board, request that the conditions imposed under this Division be removed or altered.(5) On receipt of such a request, the Board is to review the matter, and may:(a) refuse to remove or alter any of the conditions, or(b) remove or alter the conditions.(6) The Board is to give the podiatrist concerned notice in writing of its decision in respect of the request.(7) The Board may specify in the notice a period in which a further request by the podiatrist under this section is not permitted. The Board may reject a request that the conditions be removed or altered if it is made during that period.(8) This section:(a) does not prevent conditions being imposed under another provision of this Act, and(b) is subject to anything done by the Tribunal on an appeal under section 76.