Part 8 Health, performance and conduct
Note. This Part, other than Division 2, is a substituted New South Wales provision.
(1) In this Part—Assessment Committee means an Assessment Committee established under section 172A.
assessor means a person appointed as an assessor under section 174D.
authorised person means a person appointed as an authorised person under section 164.
Australian lawyer has the same meaning as it has in the Legal Profession Act 2004.
Commission means the Health Care Complaints Commission constituted under the Health Care Complaints Act 1993.
Committee means—
(a) an Assessment Committee; or(b) a Professional Standards Committee.competent has the meaning given by section 139.
complainant includes a person acting as a nominal complainant in accordance with this Law.
conduct means any act or omission.
confidential information has the meaning given by section 139A.
confidential information notice means a notice that—
(a) indicates that—(i) confidential information is not included in a statement required to be given to a person under this Law; or(ii) a statement required to be given to a person under this Law will not be provided; and(b) gives the reason the confidential information is not included or the statement will not be provided.Council means a Council established under section 41B.
court includes a tribunal, authority or person having power to require the production of documents or the answering of questions but does not include—
(a) a Tribunal established under section 165; or(b) a Council; or(c) a Performance Review Panel; or(d) a Professional Standards Committee.criminal finding means—
(a) a finding that an offence has been proved without proceeding to a conviction; or(b) a finding that an offence has been proved and the discharging of, or the making of an order releasing, the offender conditionally on entering into a good behaviour bond for a specified period or on other conditions decided by the court.critical compliance order or condition means an order or condition of a registered health practitioner’s or student’s registration that is a critical compliance order or condition under section 146B, 149A or 163B.
Director-General means the Director-General of the Ministry of Health.
drug related offence means an offence under—
(a) the Drug Misuse and Trafficking Act 1985 or regulations under that Act; or(b) the Poisons and Therapeutic Goods Act 1966 or regulations under that Act.Executive Officer means the Executive Officer of a Council.
former Board means a Board established under a repealed Act.
health product means a pharmaceutical product or other product used for health purposes.
health service has the meaning given by the Health Care Complaints Act 1993.
health service provider has the meaning given by the Health Care Complaints Act 1993.
Impaired Registrants Panel means an Impaired Registrants Panel established under section 173.
Minister means—
(a) the Minister administering this Law; or(b) if different Ministers are administering the Law in different respects or different portions of the Law, the Minister administering the Law in the relevant respect or administering the relevant portion of the Law.overservicing, by a registered health practitioner, means the practitioner, in the course of practising the practitioner’s profession—
(a) provides a service in circumstances in which provision of the service is unnecessary, not reasonably required or excessive; or(b) engages in conduct prescribed by the NSW regulations as constituting overservicing.performance assessment means an assessment of a registered health practitioner’s professional performance conducted by an assessor under Subdivision 3 of Division 5 of Part 8.
performance review means a review of a registered health practitioner’s professional performance conducted by a Performance Review Panel under Subdivision 4 of Division 5 of Part 8.
Performance Review Panel means a Performance Review Panel established under section 174.
pharmacist means a person registered under this Law in the pharmacy profession.
President means the President of a Council.
professional misconduct has the meaning given by section 139E.
Professional Standards Committee means a Professional Standards Committee established under section 169.
prohibition order has the meaning given by section 149C(5).
protected report means any of the following reports—
(a) a report prepared by an Impaired Registrants Panel for a Council;(b) a report prepared by an assessor for a Council or Performance Review Panel;(c) a report prepared by a registered health practitioner about an examination conducted under section 145E, 152B or 152C;(d) a report prepared by a registered health practitioner for a Council in connection with an examination of a person by the health practitioner as required by a condition of registration or an order imposed by an adjudication body on the person;(e) a report prepared by a registered health practitioner for a Council under a request made by a person to the health practitioner in connection with a matter being dealt with by an Impaired Registrants Panel;(f) a report prepared, under clause 12 of Schedule 5B, by a person giving expert advice to a Performance Review Panel.repealed Act means any of the following Acts—
(a) Chiropractors Act 2001;(b) Dental Practice Act 2001;(c) Medical Practice Act 1992;(d) Nurses and Midwives Act 1991;(e) Optometrists Act 2002;(f) Osteopaths Act 2001;(g) Pharmacy Practice Act 2006;(h) Physiotherapists Act 2001;(i) Podiatrists Act 2003;(j) Psychologists Act 2001.sex or violence offence means an offence involving any of the following, other than an offence prescribed by the NSW regulations—
(a) sexual activity;(b) acts of indecency;(c) child pornography or child abuse material (within the meaning of the Crimes Act 1900);(d) physical violence or the threat of physical violence.Tribunal means a Tribunal established under section 165.
unsatisfactory professional conduct has the meaning given by sections 139B–139D.
(2) A term defined in subsection (1) for this Part and also used in another NSW provision has the same meaning in the other NSW provision as it has in this Part.
139 Competence to practise health profession [NSW]
A person is competent to practise a health profession only if the person—(a) has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession; and(b) has sufficient communication skills for the practice of the profession, including an adequate command of the English language.
139A Confidential information [NSW]
Information is confidential information for the purposes of a statement of a decision under this Law if it falls into any of the following categories—(a) it has not previously been published or made available to the public when the statement of the decision to which it is or may be relevant is being prepared;(b) it relates to the personal or business affairs of a person other than a person to whom the statement is required to be provided or would be required to be provided but for the fact that it contains confidential information;(c) it was supplied in confidence;(d) its publication would reveal a trade secret;(e) it was provided in compliance with a duty imposed by or under an Act;(f) its inclusion in the statement would be a contravention of an Act;(g) it is a protected report or would reveal the contents of a protected report.
139B Meaning of “unsatisfactory professional conduct” of registered health practitioner generally [NSW]
(1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following—(a) Conduct significantly below reasonable standard
Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner’s profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.(b) Contravention of this Law or regulations
A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention.(c) Contravention of conditions of registration or undertaking
A contravention by the practitioner (whether by act or omission) of—(i) a condition to which the practitioner’s registration is subject; or(ii) an undertaking given to a National Board.(d) Failure to comply with decision or order of Committee or Tribunal
A contravention by the practitioner (whether by act or omission) of a decision or order made by a Committee or Tribunal in relation to the practitioner.(e) Contravention of requirement under Health Care Complaints Act 1993
A contravention by the practitioner of section 34A(4) of the Health Care Complaints Act 1993.(f) Accepting benefit for referral or recommendation to health service provider
Accepting from a health service provider (or from another person on behalf of the health service provider) a benefit as inducement, consideration or reward for—(i) referring another person to the health service provider; or(ii) recommending another person use any health service provided by the health service provider or consult with the health service provider in relation to a health matter.(g) Accepting benefit for recommendation of health product
Accepting from a person who supplies a health product (or from another person on behalf of the supplier) a benefit as inducement, consideration or reward for recommending that another person use the health product, but does not include accepting a benefit that consists of ordinary retail conduct.(h) Offering a benefit for a referral or recommendation
Offering or giving a person a benefit as inducement, consideration or reward for the person—(i) referring another person to the registered health practitioner; or(ii) recommending to another person that the person use a health service provided by the practitioner or consult the practitioner in relation to a health matter.(i) Failure to disclose pecuniary interest in giving referral or recommendation
Referring a person to, or recommending that a person use or consult—(i) another health service provider; or(ii) a health service; or(iii) a health product;if the practitioner has a pecuniary interest in giving that referral or recommendation, unless the practitioner discloses the nature of the interest to the person before or at the time of giving the referral or recommendation.(j) Engaging in overservicing
Engaging in overservicing.(k) Supervision of assistants
Permitting an assistant employed by the practitioner (in connection with the practitioner’s professional practice) who is not a registered health practitioner to attend, treat or perform operations on patients in respect of matters requiring professional discretion or skill.(l) Other improper or unethical conduct
Any other improper or unethical conduct relating to the practice or purported practice of the practitioner’s profession.(2) For the purposes of subsection (1)(i), a registered health practitioner has a pecuniary interest in giving a referral or recommendation—(a) if the health service provider, or the supplier of the health product, to which the referral or recommendation relates is a public company and the practitioner holds 5% or more of the issued share capital of the company; or(b) if the health service provider, or the supplier of the health product, to which the referral or recommendation relates is a private company and the practitioner has any interest in the company; or(c) if the health service provider, or the supplier of the health product, to whom the referral or recommendation relates is a natural person who is a partner of the practitioner; or(d) in any circumstances prescribed by the NSW regulations.(3) For avoidance of doubt, a reference in this section to a referral or recommendation that is given to a person includes a referral or recommendation that is given to more than one person or to persons of a particular class.(4) In this section—benefit means money, property or anything else of value.
recommend a health product includes supply or prescribe the health product.
supply includes sell.
139C Additional matters that constitute unsatisfactory professional conduct of medical practitioners [NSW]
In addition to the matters referred to in section 139B, unsatisfactory professional conduct of a medical practitioner also includes each of the following—(a) Criminal convictions and criminal findings
Conduct that results in the medical practitioner being convicted of or being made the subject of a criminal finding for any of the following offences—(i) an offence under section 102 of the Mental Health Act 2007;(ii) an offence under section 175 of the Children and Young Persons (Care and Protection) Act 1998;(iii) an offence under section 35 of the Guardianship Act 1987;(iv) an offence under section 128A, 128B, 129 or 129AA of the Health Insurance Act 1973 of the Commonwealth;(v) an offence under section 58 of the Private Health Facilities Act 2007.(b) Assisting unregistered practitioners
By the medical practitioner’s presence, countenance, advice, assistance or co-operation, knowingly enable a person who is not a medical practitioner (whether or not that person is described as an assistant) or is not otherwise authorised by a National Board to—(i) perform operative surgery (as distinct from manipulative surgery) on a patient in respect of any matter requiring professional discretion or skill; or(ii) issue or procure the issue of a certificate, notification, report or other like document, or to engage in professional practice, as if the person were a medical practitioner.(c) Failing to render urgent attention
Refusing or failing, without reasonable cause, to attend (within a reasonable time after being requested to do so) on a person for the purpose of rendering professional services in the capacity of a medical practitioner if the practitioner has reasonable cause to believe the person is in need of urgent attention by a medical practitioner, unless the practitioner has taken all reasonable steps to ensure that another medical practitioner attends instead within a reasonable time.
139D Additional matters that constitute unsatisfactory professional conduct of pharmacists [NSW]
(1) In addition to the matters referred to in section 139B, unsatisfactory professional conduct of a pharmacist also includes each of the following—(a) practising pharmacy for remuneration at a pharmacy in the course of employment by, or in association with, a non-pharmacist;(b) the supply of precursor drugs, or preparations, admixtures, extracts or other substances containing a proportion of precursor drugs, by the pharmacist in circumstances in which the supply of the drugs, preparations, admixtures, extracts or other substances is unnecessary, not reasonably required, or excessive;(c) if the pharmacist is the owner of, or otherwise has a pecuniary interest in, a pharmacy business, failing to display at or near the main entrance of each premises in which the business is carried on the owner’s name;(d) if the pharmacist is the pharmacist in charge of a pharmacy, failing to display adjacent to the area where dispensing is carried on in the pharmacy the name of the pharmacist in charge followed by the words “PHARMACIST IN CHARGE”;(e) if the pharmacist is the owner of, or otherwise has a pecuniary interest in, a pharmacy business, failing to ensure drug price information displayed in premises in which the business is carried on does not contravene the Price Information Code of Practice (within the meaning of Schedule 5F).(2) For the purposes of subsection (1)(c) and (e), the owner of a pharmacy business includes—(a) a pharmacist who has a pecuniary interest in the pharmacy business; and(b) a pharmacist who is nominated by the owner of the pharmacy business as being responsible for the matters referred to in clause 6(2)(c) or 7(2) of Schedule 5F.(3) In this section—non-pharmacist means an entity that is not a pharmacist, but does not include any of the following—
(a) the Crown;(b) a public health organisation or a charitable or philanthropic institution;(c) a pharmacists’ partnership or pharmacists’ body corporate;(d) a friendly or other society that owns a pharmacy business as permitted by clause 6 of Schedule 5F;(e) a body corporate that owns or carries on a pharmacy business under clause 7 of Schedule 5F;(f) a person who has a pecuniary interest in a pharmacy business as referred to in clause 5(4) or (5) of Schedule 5F and who carries on that business;(g) a person who, in assuming the administration of the property of another person under a security interest granted in respect of that other person’s pharmacy business, carries on that pharmacy business.precursor drug has the same meaning as precursor has in section 24A of the Drug Misuse and Trafficking Act 1985.
139E Meaning of “professional misconduct” [NSW]
For the purposes of this Law, professional misconduct of a registered health practitioner means—(a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration; or(b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration.
139F References to “complaint” [NSW]
In Subdivisions 1–6 of Division 3 and in Subdivisions 1 and 2 of Division 6, a reference to a complaint includes a reference to a matter arising out of the investigation of a complaint in accordance with this Law or another Act.
139G Part applicable to persons formerly registered under this Law
(1) This section applies if a person was, but is no longer, registered in a health profession under this Law.(2) A notification may be made, and proceedings may be taken, under this Part in relation to the person’s behaviour while registered as if the person were still registered under this Law by the National Board established for the health profession.(3) For the purposes of subsection (2), this Part (other than Division 2) applies, with any necessary changes, to the person as if a reference to a registered health practitioner included that person.Note. This section is a Health Practitioner Regulation National Law provision.
139H Part applicable to persons formerly registered under corresponding prior Act in certain circumstances
(1) This section applies if a person—(a) was registered in a health profession under a corresponding prior Act; and(b) is not, and has not been, registered in the health profession under this Law.(2) A notification may be made, and proceedings may be taken, under this Part in relation to the person’s behaviour while registered under the corresponding prior Act as if the person were registered under this Law by the National Board established for the health profession.(3) However, subsection (2) applies only to the extent—(a) a notification about the person’s behaviour could have been made under the corresponding prior Act; and(b) proceedings of that type could have been taken under the corresponding prior Act.(4) For the purposes of subsection (2), this Part (other than Division 2) applies, with any necessary changes, to the person as if a reference to a registered health practitioner included that person.Note. This section is a Health Practitioner Regulation National Law provision.
Division 2 Mandatory notifications
Note. This Division is a Health Practitioner Regulation National Law provision.
140 Definition of notifiable conduct
In this Division—notifiable conduct, in relation to a registered health practitioner, means the practitioner has—
(a) practised the practitioner’s profession while intoxicated by alcohol or drugs; or(b) engaged in sexual misconduct in connection with the practice of the practitioner’s profession; or(c) placed the public at risk of substantial harm in the practitioner’s practice of the profession because the practitioner has an impairment; or(d) placed the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from accepted professional standards.
141 Mandatory notifications by health practitioners
(1) This section applies to a registered health practitioner (the first health practitioner) who, in the course of practising the first health practitioner’s profession, forms a reasonable belief that—(a) another registered health practitioner (the second health practitioner) has behaved in a way that constitutes notifiable conduct; or(b) a student has an impairment that, in the course of the student undertaking clinical training, may place the public at substantial risk of harm.(2) The first health practitioner must, as soon as practicable after forming the reasonable belief, notify the National Agency of the second health practitioner’s notifiable conduct or the student’s impairment.Note. See section 237 which provides protection from civil, criminal and administrative liability for persons who, in good faith, make a notification under this Law. Section 237(3) provides that the making of a notification does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct and nor is any liability for defamation incurred.(3) A contravention of subsection (2) by a registered health practitioner does not constitute an offence but may constitute behaviour for which action may be taken under this Part.(4) For the purposes of subsection (1), the first health practitioner does not form the reasonable belief in the course of practising the profession if—(a) the first health practitioner—(i) is employed or otherwise engaged by an insurer that provides professional indemnity insurance that relates to the second health practitioner or student; and(ii) forms the reasonable belief the second health practitioner has behaved in a way that constitutes notifiable conduct, or the student has an impairment, as a result of a disclosure made by a person to the first health practitioner in the course of a legal proceeding or the provision of legal advice arising from the insurance policy; or(b) the first health practitioner forms the reasonable belief in the course of providing advice in relation to the notifiable conduct or impairment for the purposes of a legal proceeding or the preparation of legal advice; or(c) the first health practitioner is a legal practitioner and forms the reasonable belief in the course of providing legal services to the second health practitioner or student in relation to a legal proceeding or the preparation of legal advice in which the notifiable conduct or impairment is an issue; or(d) the first health practitioner—(i) forms the reasonable belief in the course of exercising functions as a member of a quality assurance committee, council or other body approved or authorised under an Act of a participating jurisdiction; and(ii) is unable to disclose the information that forms the basis of the reasonable belief because a provision of that Act prohibits the disclosure of the information; or(e) the first health practitioner knows, or reasonably believes, the National Agency has been notified of the notifiable conduct or impairment that forms the basis of the reasonable belief.
142 Mandatory notifications by employers
(1) If an employer of a registered health practitioner reasonably believes the health practitioner has behaved in a way that constitutes notifiable conduct, the employer must notify the National Agency of the notifiable conduct.Note. See section 237 which provides protection from civil, criminal and administrative liability for persons who, in good faith, make a notification under this Law. Section 237(3) provides that the making of a notification does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct and nor is any liability for defamation incurred.(2) If the National Agency becomes aware that an employer of a registered health practitioner has failed to notify the Agency of notifiable conduct as required by subsection (1), the Agency must give a written report about the failure to the responsible Minister for the participating jurisdiction in which the notifiable conduct occurred.(3) As soon as practicable after receiving a report under subsection (2), the responsible Minister must report the employer’s failure to notify the Agency of the notifiable conduct to a health complaints entity, the employer’s licensing authority or another appropriate entity in that participating jurisdiction.(4) In this section—employer, of a registered health practitioner, means an entity that employs the health practitioner under a contract of employment or a contract for services.
licensing authority, of an employer, means an entity that under a law of a participating jurisdiction is responsible for licensing, registering or authorising the employer to conduct the employer’s business.
143 Mandatory notifications by education providers
(1) An education provider must notify the National Agency if the provider reasonably believes—(a) a student enrolled in a program of study provided by the provider has an impairment that, in the course of the student undertaking clinical training as part of the program of study, may place the public at substantial risk of harm; or(b) a student for whom the education provider has arranged clinical training has an impairment that, in the course of the student undertaking the clinical training, may place the public at substantial risk of harm;Note. See section 237 which provides protection from civil, criminal and administrative liability for persons who make a notification under this Law. Section 237(3) provides that the making of a notification does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct and nor is any liability for defamation incurred.(2) A contravention of subsection (1) does not constitute an offence.(3) However, if an education provider does not comply with subsection (1)—(a) the National Board that registered the student must publish details of the failure on the Board’s website; and(b) the National Agency may, on the recommendation of the National Board, include a statement about the failure in the Agency’s annual report.
143A Mandatory notifications [NSW]
A mandatory notification is taken to be a complaint both for the purposes of this Part and for the purposes of the Health Care Complaints Act 1993 (including sections 96 and 98 of that Act).Note. This section is an additional New South Wales provision.
Subdivision 1 Making complaints [NSW]
144 Grounds for complaint about registered health practitioner [NSW]
The following complaints may be made about a registered health practitioner—(a) Criminal conviction or criminal finding
A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence.(b) Unsatisfactory professional conduct or professional misconduct
A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct.(c) Lack of competence
A complaint the practitioner is not competent to practise the practitioner’s profession.(d) Impairment
A complaint the practitioner has an impairment.(e) Suitable person
A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner’s profession.
144A Grounds for complaint about student [NSW]
The following complaints may be made about a student—(a) Offences
A complaint the student has, either in this jurisdiction or elsewhere, been charged with an offence, or has been convicted of or made the subject of a criminal finding for an offence, that is punishable by 12 months imprisonment or more.(b) Impairment
A complaint the student has an impairment.(c) Contravention of conditions
A complaint that the student has contravened a condition of the student’s registration or an undertaking given by the student to a National Board.
144B Who can make complaint [NSW]
(1) Any person can make a complaint.(2) A complaint may also be made by a Council or the Director-General.
144C Complaints may be made to Council or Health Care Complaints Commission [NSW]
A complaint may be made to a Council or the Commission.
144D Complaints to be in writing [NSW]
(1) A complaint, other than a complaint made by a Council or the Director-General, must—(a) be in writing; and(b) contain particulars of the allegations on which it is founded.(2) A complaint need not be made in terms that are strictly consistent with the terminology of section 144 or 144A.(3) A Council or the Commission may consider and investigate a complaint that does not comply with the requirements of subsection (1) but must not refer the complaint under Subdivision 2 until the requirements are complied with.
144E Where to lodge complaints [NSW]
(1) A complaint made to a Council must be lodged with the Executive Officer of the Council.(2) A complaint made to the Commission is, in accordance with section 9 of the Health Care Complaints Act 1993, to be lodged with the Commission.
144F Further particulars may be required from complainant [NSW]
A Council or the Commission may require the complainant to provide further particulars of a complaint.
144G Council to notify Commission and National Boards of complaints [NSW]
A Council must, as soon as practicable after a complaint is made to or by the Council about a registered health practitioner or student, notify the following persons about the complaint or matter—(a) the Commission;(b) the National Board for the health profession in which the registered health practitioner or student is registered.
Subdivision 2 How complaints are to be dealt with [NSW]
145 Complaints to be dealt with expeditiously [NSW]
All complaints are to be dealt with expeditiously.
145A Council and Commission to consult on complaint [NSW]
(1) Before any action is taken on a complaint, a Council and the Commission must consult to see if agreement can be reached between them as to the course of action to be taken concerning the complaint.(2) Division 2 of Part 2 of the Health Care Complaints Act 1993 applies to the consultation, despite the other provisions of this Subdivision.
145B Courses of action available to Council on complaint [NSW]
(1) The following courses of action are available to a Council in respect of a complaint—(a) the Council may make any inquiries about the complaint the Council thinks appropriate;(b) the Council may refer the complaint to the Commission for investigation;(c) the Council may refer the complaint to a Tribunal;(d) the Council may refer the complaint to a Committee;(e) for a complaint about a health practitioner or student who is registered in a health profession other than the medical or nursing and midwifery profession, the Council may deal with the complaint by inquiry at a meeting of the Council;(f) the Council may—(i) refer the practitioner or student for a health assessment; or(ii) refer the matter to an Impaired Registrants Panel; or(iii) refer the professional performance of the practitioner concerned for a performance assessment;(g) the Council may direct the practitioner or student concerned to attend counselling;(h) the Council may 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;(i) the Council may refer the complaint to another entity, including, for example, a National Board;(j) the Council may determine that no further action should be taken in respect of the complaint.(2) The Commission must, on receipt of a complaint referred by a Council for investigation, investigate the complaint or cause it to be investigated.(3) If a Council makes a referral under subsection (1)(f), the matter ceases to be a complaint for the purposes of this Law and the Health Care Complaints Act 1993.(4) Subsection (3) ceases to apply in respect of any matter that a Council subsequently deals with as a complaint.
145C Courses of action available to the Commission on complaint [NSW]
(1) The following courses of action are available to the Commission in respect of a complaint made to the Commission, or that the Commission has decided to make, about a registered health practitioner or student—(a) the Commission may refer the complaint to the Council for the health profession in which the practitioner or student is registered or, after consultation with a Council, to a Committee or the Tribunal;(b) the Commission may refer the complaint for conciliation or deal with the complaint under Division 9 of Part 2 of the Health Care Complaints Act 1993;(c) the Commission may refer the complaint to another entity, including, for example, a National Board;(d) the Commission may determine that no further action should be taken in respect of the complaint;(e) the Commission may take any other action that it can take under the Health Care Complaints Act 1993.(2) If the Commission refers a complaint to a Committee or the Tribunal, the Commission must inform the Council accordingly.
145D Serious complaints must be referred to Tribunal [NSW]
(1) Both a Council for a health profession and the Commission are under a duty to refer a complaint to the Tribunal for the health profession if, at any time, either forms the opinion that it may, if substantiated, provide grounds for the suspension or cancellation of a registered health practitioner’s or student’s registration.(2) However, either the Council or the Commission may decide not to refer the complaint to the Tribunal if of the opinion the allegations on which the complaint is founded (and on which any other pending complaint against the registered health practitioner or student is founded) relate solely or principally to—(a) for a practitioner, the physical or mental capacity of the practitioner to practise the practitioner’s profession; or(b) for a student, the physical or mental capacity of the student to undertake clinical training in the health profession in which the student is registered.(3) If the Council decides not to refer the complaint to the Tribunal, the Council must instead refer the complaint to a Committee or Impaired Registrants Panel.(4) If the Commission decides not to refer the complaint to the Tribunal, the Commission must instead refer the complaint to the Council.(5) This section does not require the Council or the Commission to refer a complaint the Council or Commission thinks is frivolous or vexatious.
145E Council may require health practitioner or student to undergo examination [NSW]
(1) A Council may, by written notice given to a registered health practitioner or student against whom a complaint has been made, direct the practitioner or student to undergo an examination by a specified registered health practitioner at a specified reasonable time and place.(2) A registered health practitioner or student must not be directed to undergo an examination under subsection (1) unless it is reasonable to require the examination, given the nature of the complaint against the practitioner or student.(3) The fee charged by the specified registered health practitioner for the examination is at the expense of the Council.
145F Result of failure to attend counselling or examination [NSW]
A failure by a registered health practitioner or student, without reasonable excuse, to comply with a direction under section 145B to attend counselling or under section 145E to undergo an examination is, for the purposes of this Law and any inquiry or appeal under this Law, evidence that the practitioner or student—(a) for a registered health practitioner, does not have sufficient physical and mental capacity to practise the health profession in which the practitioner is registered; or(b) for a student, does not have sufficient physical and mental capacity to undertake clinical training in the health profession in which the student is registered.
145G Inquiries etc not prevented by other proceedings [NSW]
A complaint can be referred to a Committee or the Tribunal, and dealt with by the Committee or Tribunal, even though the practitioner or student concerned is the subject of proposed or current criminal or civil proceedings relating to the subject-matter of the complaint.
145H Complaint not to be referred if health practitioner or student dead [NSW]
A complaint is not to be referred under this Subdivision if the registered health practitioner or student concerned is dead.
145I Complaint need not be referred if health practitioner or student no longer registered [NSW]
A Council or the Commission may decide not to refer a complaint under this Subdivision if the registered health practitioner or student concerned has ceased to be registered.
145J Complaint need not be referred if complainant fails to provide further particulars [NSW]
A Council or the Commission may decide not to refer a complaint under this Subdivision if the complainant has failed to provide further particulars in response to a request by the Council or the Commission.
Subdivision 3 Disciplinary powers of Professional Standards Committees [NSW]
In this Subdivision—Committee means a Professional Standards Committee.
relevant health practitioner means a health practitioner registered under this Law in the—
(a) medical profession; or(b) nursing and midwifery profession.
146A Powers may be exercised if complaint proved or admitted [NSW]
A Committee may exercise any power conferred on it by this Subdivision if it finds the subject-matter of a complaint against a relevant health practitioner to have been proved or the relevant health practitioner who is the subject of the complaint admits to it in writing to the Committee.
146B General powers to caution, reprimand, counsel etc [NSW]
(1) A Committee may do one or more of the following in relation to a relevant health practitioner the subject of a complaint referred to it—(a) caution or reprimand the practitioner;(b) direct that the conditions, relating to the practitioner’s practising of the practitioner’s profession, it considers appropriate be imposed on the practitioner’s registration;(c) order that the practitioner seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling);(d) order that the practitioner complete an educational course specified by the Committee;(e) order that the practitioner report on the practitioner’s practice at the times, in the way and to the persons specified by the Committee;(f) order that the practitioner seek and take advice, in relation to the management of the practitioner’s practice, from the persons specified by the Committee.(2) If the relevant health practitioner is not registered, a direction may still be given under this section but has effect only so as to require the conditions concerned to be imposed when the health practitioner is registered.(3) If a Committee acting under this section makes an order or directs that any condition be imposed on a health practitioner’s registration, the Committee may order that a contravention of the order or condition will result in the health practitioner’s registration in the health profession being cancelled.(4) The order or condition concerned is then a critical compliance order or condition.
146C Power to fine in certain cases [NSW]
(1) A Committee may by order impose a fine of an amount of not more than 50 penalty units on a relevant health practitioner the subject of a complaint referred to the committee.(2) A fine is not to be imposed unless—(a) the Committee finds the relevant health practitioner to have been guilty of unsatisfactory professional conduct; and(b) the Committee is satisfied there is no other order, or combination of orders, that is appropriate in the public interest.(3) A fine is not to be imposed if a fine or other penalty has already been imposed by a court in respect of the conduct.(4) A fine must be paid within the time specified in the order imposing the fine and must be paid to the Council.
146D Committee can recommend suspension or cancellation on grounds of lack of physical or mental capacity [NSW]
(1) A Committee may recommend that a relevant health practitioner’s registration be suspended for a specified period or that the practitioner’s registration be cancelled if the Committee is satisfied the practitioner does not have sufficient physical and mental capacity to practise the practitioner’s profession.(2) If the relevant health practitioner is no longer registered, a recommendation may be made under this section that the person be disqualified from being registered.(3) The Committee makes its recommendation by referring the matter, with its recommendation and the material on which it relied in making its recommendation, to the Chairperson of the Tribunal or to a Deputy Chairperson nominated by the Chairperson.(4) The Chairperson or Deputy Chairperson may—(a) make an order in the terms recommended; or(b) may make another order about the suspension or cancellation of the registration of the relevant health practitioner as the Chairperson or Deputy Chairperson thinks proper based on the findings of the Committee.(5) An order under this section may also provide that an application for review of the order under Division 8 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 of a Committee under this Subdivision.
146E Council may refer contravention of conditions to Tribunal [NSW]
(1) If a Council for a health profession reasonably believes a relevant health practitioner has contravened any conditions imposed under a direction made by a Committee under this Subdivision, it may refer the matter to the Tribunal for the profession.(2) If the Tribunal finds the failure proved, it may exercise any power conferred on it or a Committee by this Subdivision.
Subdivision 4 Dealing with complaints by Assessment Committee [NSW]
In this Subdivision—Committee means an Assessment Committee.
relevant health practitioner means a health practitioner registered under this Law other than a health practitioner registered in the—
(a) medical profession; or(b) nursing and midwifery profession.
147A Complaints that may be referred to Committee [NSW]
(1) A Council may refer a complaint to a Committee only if—(a) the complaint is about a relevant health practitioner; and(b) the Commission has decided not to investigate the complaint or following an investigation has decided not to refer the complaint to a Tribunal.(2) A complaint may not be referred to a Committee if it is a complaint that—(a) the relevant health practitioner is not of good character; or(b) the relevant health practitioner has been convicted of or made the subject of a criminal finding for an offence.(3) This section does not limit the Committee in the exercise of its functions under this Subdivision in relation to any matter that arises in the course of the Committee’s investigation of a complaint.
147B How complaints are dealt with [NSW]
(1) If a complaint is referred to a Committee, the Committee must—(a) investigate the complaint; and(b) encourage the complainant and the relevant health practitioner the subject of the complaint to settle the complaint by consent.(2) A Committee may obtain the medical, legal, financial or other advice it thinks necessary or desirable to enable it to exercise its functions.(3) Advice obtained by a Committee under subsection (2) may not, unless otherwise ordered by the Council, be admitted or used in civil proceedings before a court and a person may not be compelled to produce the advice or to give evidence in relation to the advice in civil proceedings.(4) A Committee may not decide a complaint referred to it other than by settlement by consent.(5) A Committee must give to the Council a written report about whether or not it is able to effect settlement of the complaint by consent.
147C Skills testing of relevant health practitioner [NSW]
(1) A Council may direct a Committee to require the relevant health practitioner the subject of the complaint referred to the Committee to undergo skills testing.(2) The Committee must, by written notice given to the relevant health practitioner, require the health practitioner to undergo skills testing by an appropriately qualified person specified in the notice, at the reasonable time and place specified in the notice.(3) A failure by the relevant health practitioner, without reasonable excuse, to comply with the notice is, for the purposes of this Part or any inquiry or appeal under this Law, evidence the health practitioner does not have sufficient skill to practise the health profession in which the health practitioner is registered.(4) A person who conducts skills testing for the purposes of this section must report to the Committee on the results of the testing.(5) The Committee must give a copy of the report to the relevant health practitioner.(6) A person must not, directly or indirectly, make a record of or divulge to any person any information contained in a report to a Committee under this section that has come to the person’s notice in the exercise of the person’s functions under this Law, other than for the purpose of exercising the person’s functions under this Law.Maximum penalty—50 penalty units.
(7) A person cannot be required in civil proceedings in any court to produce or permit access to a report made to a Committee under this section or to divulge the contents of the report.(8) In this section—report includes a copy, reproduction and duplicate of the report or any part of the report, copy, reproduction or duplicate.
147D Recommendations of Committee [NSW]
(1) A Committee’s report to a Council may include the recommendations about the complaint the Committee considers appropriate, including any of the following—(a) a recommendation that the Council deal with the complaint by inquiry at a meeting of the Council as a complaint of unsatisfactory professional conduct;(b) a recommendation that the Council direct the relevant health practitioner to attend counselling;(c) a recommendation that the Council dismiss the complaint.(2) The Council must give the relevant health practitioner and the Commission a copy of the Committee’s report as soon as practicable after the report is made.(3) The Council must—(a) if the Committee recommends that the Council deal with the complaint by inquiry at a meeting of the Council as a complaint of unsatisfactory professional conduct, comply with the recommendation; or(b) otherwise, allow the Commission and the relevant health practitioner, not less than 21 days after they have been given a copy of the Committee’s report and recommendations, to make submissions about the report and recommendations.(4) After considering the Committee’s report and recommendations and any submissions made by the Commission or relevant health practitioner, the Council must proceed to deal with the complaint as provided by section 145B.Note. See section 145D which provides that both Council and the Commission have a duty to refer a complaint to the Tribunal if, at any time, either of them is of the opinion that the complaint, if substantiated, would provide grounds for the suspension or cancellation of the relevant health practitioner’s registration.
147E No representation for parties appearing before Committee [NSW]
A complainant and the relevant health practitioner the subject of the complaint are not entitled to be legally represented at an appearance before a Committee.
Subdivision 5 Dealing with complaint by inquiry at meeting of Council [NSW]
148 Application of Subdivision [NSW]
This Subdivision does not apply to a complaint about a health practitioner or student registered in—(a) the medical profession; or(b) the nursing and midwifery profession.
148A Procedures for dealing with complaint at meeting [NSW]
(1) If a Council decides to deal with a complaint about a registered health practitioner or student by inquiry at a meeting of the Council, the meeting must be held in accordance with Part 3 of Schedule 5C and this Subdivision.(2) The Council may be assisted by a legal practitioner when dealing with the complaint at a meeting of the Council.(3) The Council must give the Commission a copy of any submission made to the Council by the registered health practitioner or student 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 Law and the NSW regulations, to be decided by the Council.
At the meeting to deal with the complaint, the Council—(a) may inform itself on any matter in the way it thinks fit; and(b) may receive written or oral submissions; and(c) must proceed with as little formality and technicality, and as much expedition, as the requirements of this Law 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 registered health practitioner or student.
148D Making submissions to inquiry [NSW]
(1) The registered health practitioner or student is entitled to attend the meeting at which the complaint is dealt with and to make submissions to the Council.(2) The Committee may, if the Council so requires, make a submission to the Council with respect to the complaint and may for that purpose attend the meeting at which the complaint is dealt with.(3) The Council must give the Commission the opportunity to make a submission to the Council with respect to the complaint and the Commission may for that purpose attend the meeting at which the complaint is dealt with.(4) The Committee or the Commission may not be present at the meeting except while actually making a submission, unless the Council otherwise decides.(5) Despite subsection (4), the Commission may be present throughout the Council’s inquiry if the complaint is the subject of a recommendation of the Commission that it be dealt with by inquiry at a meeting of the Council under this Subdivision.(6) The registered health practitioner or student 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.
148E General powers of Council [NSW]
(1) The Council may do any one or more of the following in relation to the health practitioner the subject of the inquiry—(a) caution or reprimand the practitioner;(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 services that are the subject of the complaint;(c) direct that specified conditions relating to the practitioner’s practice of the health profession be imposed on the practitioner’s registration;(d) order that the practitioner seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling);(e) order that the practitioner complete an educational course specified by the Council;(f) order that the practitioner report on his or her practice at the times, in the way and to the persons specified by the Council;(g) order that the practitioner seek and take advice, in relation to the management of his or her practice, from persons specified by the Council.(2) The Council may do any one or more of the following in relation to the student the subject of the inquiry—(a) caution or reprimand the student;(b) direct that specified conditions be imposed on the student’s registration;(c) order that the student seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling);(d) order that the student complete an educational course specified by the Council.(3) 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.
148F Power to fine in certain cases [NSW]
(1) The Council may by order impose a fine, of an amount of not more than 50 penalty units, on the health practitioner the subject of the inquiry.(2) A fine is not to be imposed unless—(a) the Council finds the health practitioner to have been guilty of unsatisfactory professional conduct; and(b) the Council is satisfied there is no other order, or combination of orders, that is appropriate in the public interest.(3) A fine is not to be imposed if a fine or other penalty has already been imposed by a court in respect of the conduct.(4) A fine must be paid within the time specified in the order imposing the fine and must be paid to the Council.
148G Power of Council to recommend suspension or cancellation of registration [NSW]
(1) The Council may recommend that the registration of the registered health practitioner or student be suspended for a specified period or cancelled if the Council is satisfied the health practitioner or student—(a) for a health practitioner, does not have sufficient physical and mental capacity to practise the practitioner’s profession; or(b) for a student, has an impairment.(2) If the health practitioner is not registered, a recommendation can be made under this section that the health practitioner not be registered.(3) The Council 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—(a) make an order in the terms recommended; or(b) make another order about the suspension or cancellation of the health practitioner’s or student’s registration as the Chairperson or Deputy Chairperson thinks proper based on the Council’s findings.(5) An order may also provide that an application for review of the order under Division 8 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 Council under this Subdivision.
148H Decision of the Council [NSW]
(1) The Council must, within 30 days of making its decision on the complaint, make available to the complainant, the registered health practitioner or student concerned, the National Board and any other persons it thinks fit, a written statement of the decision.(2) If the Commission made a submission to the Council with respect to the complaint, the Council must 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 Council is not required to include confidential information in the statement.(5) If the statement would be false or misleading if it did not include the confidential information, the Council is not required to provide the statement.(6) If confidential information is not included in the statement given to a person or the statement is not given to a person because of subsection (5), the Council must give a confidential information notice to the person.(7) A confidential information notice must be given within one month after the decision is made.(8) 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.
148I Admissibility of Council’s findings [NSW]
A finding of a Council under this Subdivision is admissible as evidence in any legal proceedings.
Subdivision 6 Disciplinary powers of Tribunals [NSW]
149 Powers may be exercised if complaint proved or admitted [NSW]
A Tribunal may exercise any power conferred on it by this Subdivision in relation to a registered health practitioner or student if—(a) it finds the subject-matter of a complaint against the practitioner or student to have been proved; or(b) the practitioner or student admits to it in writing to the Tribunal.
149A General powers to caution, reprimand, counsel etc [NSW]
(1) The Tribunal may do any one or more of the following in relation to the registered health practitioner—(a) caution or reprimand the practitioner;(b) impose the conditions it considers appropriate on the practitioner’s registration;(c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling);(d) order the practitioner to complete an educational course specified by the Tribunal;(e) order the practitioner to report on the practitioner’s practice at the times, in the way and to the persons specified by the Tribunal;(f) order the practitioner to seek and take advice, in relation to the management of the practitioner’s practice, from persons specified by the Tribunal.(2) The Tribunal may do any one or more of the following in relation to the student—(a) caution or reprimand the student;(b) impose the conditions it considers appropriate on the student’s registration;(c) order the student to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling);(d) order the student to complete an educational course specified by the Tribunal.(3) If the health practitioner is no longer registered, an order or direction may still be given under this section but has effect only—(a) to prevent the practitioner being registered unless the order is complied with; or(b) to require the conditions concerned to be imposed when the practitioner is registered.(4) If the Tribunal makes an order or imposes a condition on the registered health practitioner’s or student’s registration, the Tribunal may order that a contravention of the order or condition will result in the practitioner’s or student’s registration being cancelled.(5) The order or condition concerned is then a critical compliance order or condition.
149B Power to fine registered health practitioner in certain cases [NSW]
(1) The Tribunal may by order impose a fine on the registered health practitioner of an amount of not more than 250 penalty units.(2) A fine is not to be imposed unless—(a) the Tribunal finds the registered health practitioner to have been guilty of unsatisfactory professional conduct or professional misconduct; and(b) the Tribunal is satisfied there is no other order, or combination of orders, that is appropriate in the public interest.(3) A fine is not to be imposed if a fine or other penalty has already been imposed by a court in respect of the conduct.(4) A fine must be paid within the time specified in the order imposing the fine and must be paid to the Council for the health profession.
149C Tribunals may suspend or cancel registration in certain cases [NSW]
(1) A Tribunal may suspend a registered health practitioner’s registration for a specified period or cancel the registered health practitioner’s registration if the Tribunal is satisfied—(a) the practitioner is not competent to practise the practitioner’s profession; or(b) the practitioner is guilty of professional misconduct; or(c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner’s profession; or(d) the practitioner is not a suitable person for registration in the practitioner’s profession.(2) A Tribunal may suspend a student’s registration for a specified period or cancel the student’s registration if the Tribunal is satisfied—(a) the student has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the student unfit in the public interest to undertake clinical training in the health profession; or(b) the student is otherwise not a suitable person to undertake clinical training in the health profession.(3) The Tribunal must cancel a registered health practitioner’s or student’s registration if the Tribunal is satisfied the practitioner or student has contravened a critical compliance order or condition.(4) If the person is no longer registered, the Tribunal may—(a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person’s registration; and(b) if the Tribunal would have cancelled the person’s registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and(c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person’s registration in the National Register kept by the Board.(5) If the Tribunal suspends or cancels a registered health practitioner’s or student’s registration and it is satisfied 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 specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently.Note. Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order.(6) If the Tribunal is aware a registered health practitioner or student in respect of whom it is proposing to make a prohibition order is registered in a health profession other than the health profession in respect of which the Tribunal is making the order, the Tribunal must, before making the prohibition order—(a) notify the Council and the National Board for that health profession, and the Commission, of the proposed order; and(b) give the Council, National Board and Commission an opportunity to make a submission.(7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time.
149D Council may refer contravention of disciplinary order to Tribunal [NSW]
(1) If a Council for a health profession reasonably believes a person has failed to comply with an order (or conditions imposed under an order) made by the Tribunal for the profession under this Subdivision, it may refer the matter to the Tribunal.(2) If the Tribunal finds the failure proved, it may exercise any power conferred on it by this Subdivision.
Subdivision 7 Powers of a Council for protection of public [NSW]
150 Suspension or conditions of registration to protect public [NSW]
(1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest—(a) by order suspend a registered health practitioner’s or student’s registration; or(b) by order impose on a registered health practitioner’s registration the conditions relating to the practitioner’s practising the health profession the Council considers appropriate; or(c) by order impose on a student’s registration the conditions the Council considers appropriate.(2) A suspension of a registered health practitioner’s or student’s registration under subsection (1) has effect until the first of the following happens—(a) the complaint about the practitioner or student is disposed of;(b) the suspension is ended by the Council.(3) If a Council for a health profession is satisfied a health practitioner or student registered in the profession has contravened a critical compliance order or condition, the Council must—(a) suspend the practitioner’s or student’s registration until a complaint concerning the matter is dealt with by the Tribunal for the health profession for which the Council is established; and(b) refer the matter to the Tribunal as a complaint.(4) A Council for a health profession may take action under this section—(a) whether or not a complaint has been made or referred to the Council about the practitioner or student; and(b) whether or not proceedings in respect of a complaint about the practitioner or student are before a Committee or the Tribunal for the profession.(5) Without limiting the conditions that may be imposed under subsection (1)(b), a Council may impose a condition requiring the registered health practitioner to undergo a performance assessment, but the condition has no effect unless the Commission agrees with the imposition of the condition.(6) A Council must give written notice of action taken under this section to the registered health practitioner or student concerned.(7) If a Council delegates any function of the Council under this section to a group of 2 or more persons, at least one of those persons must be a person who—(a) is not a registered health practitioner or student in the health profession for which the Council is established; and(b) has not at any time been registered as a health practitioner or student in that health profession under this Law or a corresponding prior Act.
150A Review of certain decisions [NSW]
(1) A registered health practitioner or student may apply to a Council for the review of a decision of the Council under section 150 to—(a) suspend the practitioner’s or student’s registration; or(b) impose conditions on the practitioner’s or student’s registration or alter conditions imposed on the practitioner’s or student’s registration.(2) On receiving an application for review, a Council—(a) may refuse to reconsider its decision if, in the Council’s opinion, the application is frivolous or vexatious; or(b) must otherwise reconsider its decision, and in so doing must consider any new evidence or material submitted by the practitioner or student that the Council reasonably considers is relevant.(3) Following its reconsideration of a decision, a Council may—(a) affirm or vary the decision; or(b) set it aside and take any action the Council has the power to take under section 150.(4) A Council may vary or set aside a decision only if the Council is satisfied there has been a change in the registered health practitioner’s or student’s circumstances that justifies the variation or setting aside of the decision.
150B Audio recording of meeting [NSW]
(1) A Council must cause an audio recording to be made of any proceedings of the Council in connection with the consideration by the Council of the exercise or proposed exercise of a function under this Subdivision in respect of a registered health practitioner or student—(a) during which the practitioner or student, or the practitioner’s or student’s adviser, is present; or(b) during which a person other than a member of the Council or a staff member of the Council is present and gives the Council oral information relevant to the Council’s consideration.(2) A recording under this section is not admissible in evidence in—(a) civil or criminal proceedings in a court of law (other than proceedings under this Law); or(b) an inquest or inquiry under the Coroners Act 2009.
150C Power to remove or alter conditions or end suspension [NSW]
(1) A Council may, at any time—(a) end a period of suspension imposed by the Council under this Subdivision; or(b) alter or remove conditions imposed under this Subdivision.(2) A Council may, at any time after taking action under section 150 with respect to a registered health practitioner or student (the original action), take any other action it could have taken under that section at the time of taking the original action.(3) The Council must give written notice of the action it takes under this section to the registered health practitioner or student concerned.
150D Referral of matter to Commission [NSW]
(1) A Council must, as soon as practicable but no later than 7 days after taking action under section 150, refer the matter to the Commission for investigation.(2) The Council may (despite any other Act or law) give to the Commission information obtained by the Council in connection with the exercise of functions under section 150 (including information, copies of documents or evidence obtained under section 150J and a copy of a recording made under section 150B) in respect of the matter.(3) The matter must be dealt with by the Commission as a complaint made to the Commission against the registered health practitioner or student concerned.(4) The Commission must investigate the complaint or cause it to be investigated and, as soon as practicable after it has completed its investigation and if it considers it appropriate to do so, refer the complaint to the Tribunal or a Committee for the health profession in which the health practitioner or student is registered.Note. See section 145D which provides that both Council and the Commission have a duty to refer a complaint to the Tribunal if, at any time, either of them is of the opinion that the complaint, if substantiated, would provide grounds for the suspension or cancellation of the registered health practitioner’s or student’s registration.(5) This section does not apply if a Council takes action against a registered health practitioner or student under section 150—(a) because, in the Council’s opinion, the practitioner or student has an impairment; or(b) that is action of a kind referred to in section 150(5).
150E Special provision—performance assessment [NSW]
(1) If the Commission agrees with the proposed imposition by a Council under section 150 of a condition on a registered health practitioner’s registration requiring the practitioner to take part in a performance assessment, the matter giving rise to the proposal—(a) must be dealt with by way of a performance assessment; and(b) may, if the Council and the Commission agree, also be dealt with by the Commission as a complaint against the practitioner.(2) If the Commission does not agree with the imposition of the condition, the matter must be dealt with by the Commission as a complaint against the registered health practitioner.(3) The Council may (despite any other Act or law) provide to the Commission any information obtained by the Council in connection with the exercise of functions under section 150 (including any information, copies of documents or evidence obtained under section 150J and a copy of any recording made under section 150B) in respect of the matter.(4) If a matter is to be dealt with under this section by way of a performance assessment, it may be so dealt with despite anything to the contrary in section 154A.(5) If the matter is to be dealt with as a complaint, the Council must refer the matter to the Commission and the matter must be dealt with by the Commission as a complaint made to the Commission against the practitioner concerned.(6) The Commission must investigate the complaint or cause it to be investigated and, as soon as practicable after the investigation is completed, refer the complaint to a Committee or the Tribunal for the health profession.Note. See section 145D which provides that both Council and the Commission have a duty to refer a complaint to the Tribunal if, at any time, either of them is of the opinion the complaint, if substantiated, would provide grounds for the suspension or cancellation of the health practitioner’s registration.
150F Special provisions—impairment [NSW]
(1) This section applies if a Council takes action against a registered health practitioner or student under section 150 because, in the Council’s opinion, the practitioner or student has an impairment.(2) The Council 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 Council must 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 registered health practitioner or student; or(b) referred to an Impaired Registrants Panel.(4) The matter is to be dealt with as a complaint against the registered health practitioner or student only if, following the consultation—(a) the Council and the Commission agree it should be dealt with as a complaint; or(b) either the Council or the Commission is of the opinion the matter should be dealt with as a complaint.(5) If the matter is to be dealt with as a complaint, the Council must refer the matter to the Commission and the matter must be dealt with by the Commission as a complaint made to the Commission against the registered health practitioner or student.(6) The Commission must investigate the complaint or cause it to be investigated and, as soon as practicable after the investigation is completed, consult with the Council about how the matter is to be dealt with, including, for example, by referring the complaint to the Tribunal or a Committee for the health profession in which the health practitioner or student is registered.Note. See section 145D which provides that both Council and the Commission have a duty to refer a complaint to the Tribunal if, at any time, either of them is of the opinion the complaint, if substantiated, would provide grounds for the suspension or cancellation of the health practitioner’s or student’s registration.(7) If the matter is not to be dealt with as a complaint, the Council must refer the matter to an Impaired Registrants Panel.
When a suspension imposed under this Subdivision ends, the person’s rights and privileges as a registered health practitioner or student in the health profession are revived, subject to—(a) any other action taken by the Council for the profession under this Subdivision; or(b) any order of the Tribunal for the health profession on a complaint referred to the Tribunal.
150H Duration of conditions—complaint matters [NSW]
(1) This section applies if—(a) a Council for a health profession imposes conditions on the registration of a registered health practitioner or student under section 150; and(b) the matter is dealt with as a complaint against the practitioner or student.(2) The conditions imposed by the Council have effect until the first of the following happens—(a) the complaint about the registered health practitioner or student is disposed of;(b) the conditions are removed by the Council.(3) This section—(a) does not prevent conditions being imposed under another provision of this Law; and(b) is subject to anything done by the Tribunal for the health profession on an appeal.
150I Duration of conditions—impairment matters [NSW]
(1) This section applies if—(a) a Council for a health profession imposes conditions on the registration of a registered health practitioner or student under section 150; and(b) the matter is referred to an Impaired Registrants Panel.(2) The conditions imposed by the Council have effect until the first of the following happens—(a) if the matter is subsequently dealt with by the Council as a complaint, the complaint about the registered health practitioner or student is disposed of;(b) the conditions are removed by the Council.(3) The Council is not required to alter or remove the conditions merely because the registered health practitioner or student agrees to conditions being imposed on the practitioner’s or student’s registration in accordance with the recommendations of an Impaired Registrants Panel.(4) If the registered health practitioner or student agrees to conditions being imposed on the practitioner’s or student’s registration in accordance with the recommendations of an Impaired Registrants Panel, the practitioner or student may, by written notice to the Council, ask for the conditions imposed under this Subdivision to be altered or removed.(5) On receipt of the request, the Council must review the matter, and may—(a) refuse to alter or remove the conditions; or(b) alter or remove the conditions.(6) The Council must give the registered health practitioner or student written notice of its decision.(7) The Council may specify in the notice a period during which a further request by the registered health practitioner or student for the conditions to be altered or removed is not permitted.(8) The Council may reject a request that the conditions be altered or removed if it is made during that period.(9) This section—(a) does not prevent conditions being imposed under another provision of this Law; and(b) is subject to anything done by the Tribunal for the health profession on an appeal.
150J Powers of Council to obtain information, records and evidence [NSW]
(1) If, in a Council’s opinion, a person is capable of giving information, documents (including medical records) or evidence that would assist the Council in making a decision about action taken or proposed to be taken by the Council under this Subdivision, the Council may, by written notice given to the person, require the person to do one or more of the following—(a) to give the Council, in writing signed by the person (or, in the case of a corporation, by a competent officer of the corporation), within the time and in the way specified in the notice, information of which the person has knowledge;(b) to produce to the Council, in accordance with the notice, documents;(c) to appear before the Council or a member of staff of the Council authorised by the President or Deputy President of the Council at a specified reasonable time and place and give evidence, either orally or in writing, and produce documents.(2) Information and documents may be given to a Council in compliance with this section despite any other Act or law.(3) A person who is subject to a requirement made under subsection (1) must not—(a) without reasonable excuse, fail to comply with the requirement; or(b) in purported compliance with the requirement, provide information, documents or evidence knowing the information, documents or evidence to be false or misleading in a material particular.Maximum penalty—20 penalty units.
Subdivision 8 Duty of courts etc to refer matters to Executive Officer [NSW]
151 Referral of mental health matters to Executive Officer [NSW]
(1) If a registered health practitioner or student becomes a mentally incapacitated person or is involuntarily admitted to a mental health facility, the person prescribed by the NSW regulations must cause notice of that fact to be given to—(a) the Executive Officer of the Council for the health profession in which the registered health practitioner or student is registered; and(b) the National Board for the health profession in which the registered health practitioner or student is registered.(2) The notice, and the way in which the notice is given, must comply with any requirements prescribed by the NSW regulations.
151A Referral of matters by courts [NSW]
(1) A court in this jurisdiction before which a person is convicted of an offence, or is made the subject of a criminal finding for a sex or violence offence or a drug related offence, must cause notice of the conviction or criminal finding, and of any penalty imposed on the person, to be given to the Executive Officer of a Council for a health profession if the court has reasonable grounds to believe that the person is or was, at the time the offence was committed, registered in the health profession.(2) If a coroner has reasonable grounds to believe the evidence given or to be given in proceedings conducted or to be conducted before the coroner may indicate a complaint could be made about a person who is or was registered in a health profession, the coroner may give a transcript of that evidence to the Executive Officer of the Council for the health profession.(3) If a notice or a transcript of evidence is given to the Executive Officer under this section—(a) a complaint is taken to have been made to a Council about the person to whom the notice or transcript relates; and(b) the Executive Officer must give written notice of the notice or transcript of evidence to the National Board for the health profession in which the person is or was registered.(4) The coroner is not the complainant in relation to a complaint taken to have been made under subsection (3) and sections 144D(1), 144E and 144F do not apply to the complaint.
152 Persons may notify Council of impairment matters concerning practitioners or students [NSW]
A person may notify a Council of a matter the person thinks indicates a registered health practitioner or student has or may have an impairment.
152A Commission may refer impairment matters to Council [NSW]
(1) If the Commission becomes aware of a matter the Commission considers indicates a registered health practitioner or student has or may have an impairment, the Commission may refer the matter to the Council for the health profession in which the practitioner or student is registered.(2) This section does not affect the functions of a Council in relation to a complaint made to the Commission or a matter referred to the Commission for investigation.
152B Council may require registered health practitioner to undergo examination [NSW]
(1) If a Council reasonably believes a registered health practitioner has or may have an impairment, the Council may, by written notice given to the practitioner, require the practitioner to undergo an examination by another registered health practitioner.(2) The notice must state—(a) that the registered health practitioner is required to undergo an examination by a registered health practitioner; and(b) the name of the registered health practitioner who is to conduct the examination; and(c) if the examination is to be conducted at a particular time and place, the time and the place at which the examination is to be conducted; and(d) that if the registered health practitioner fails to undergo the examination as required by the notice, the failure may constitute evidence that the practitioner does not have sufficient physical and mental capacity to practise the practitioner’s health profession.(3) The fee charged by the registered health practitioner for conducting the examination must be at the expense of the Council.(4) If the registered health practitioner fails, without reasonable excuse, to comply with the notice, the failure is evidence the practitioner does not have sufficient physical and mental capacity to practise the practitioner’s health profession.
152C Council may require student to undergo examination [NSW]
(1) If a Council reasonably believes a student has or may have an impairment, the Council may, by written notice given to the student, require the student to undergo an examination by a registered health practitioner.(2) The notice must state—(a) that the student is required to undergo an examination by a registered health practitioner; and(b) the name of the registered health practitioner who is to conduct the examination; and(c) if the examination is to be conducted at a particular time and place, the time and the place at which the examination is to be conducted; and(d) that if the student fails to undergo the examination as required by the notice the Council may suspend the student’s registration until the student undergoes the examination.(3) The fee charged by the registered health practitioner for conducting the examination is at the expense of the Council.(4) If the student fails, without reasonable excuse, to comply with the notice, the Council may suspend the student’s registration until the student undergoes the examination.(5) The suspension takes effect when written notice of it is served on the educational provider with which the student is undertaking the approved program of study or that arranged the clinical training for the student.
152D Referral of impairment matters concerning practitioners or students [NSW]
(1) A Council may decide to refer a matter to an Impaired Registrants Panel if the Council considers the matter indicates a registered health practitioner or student has or may have an impairment.(2) Subsection (1) applies whether or not the matter is the subject of a complaint to the Council.(3) If the Council is aware a complaint has been made to the Commission about a registered health practitioner or student who is the subject of a referral to an Impaired Registrants Panel, the Council must notify the Commission of the referral.
152E Panel must inquire into matters referred to it [NSW]
(1) An Impaired Registrants Panel must inquire into any matter referred to it and may obtain reports and other information concerning the matter from any source it considers appropriate.(2) The Panel may ask the registered health practitioner or student who is the subject of the referral, to attend before the Panel for the purpose of enabling the Panel to obtain information on the matter and make an assessment.
152F Panel not to take action while Commission investigating [NSW]
An Impaired Registrants Panel is not to investigate or take any other action in relation to a matter if the Panel is aware the matter is the subject of an investigation by the Commission, while the investigation is being conducted.
152G Council to give notice of proposed inquiry [NSW]
(1) A Council must give notice to a registered health practitioner or student of any proposed inquiry by an Impaired Registrants Panel concerning the practitioner or student.(2) The notice must include sufficient details of the matters to which the inquiry is to relate.
152H Practitioner or student entitled to make representations [NSW]
(1) A registered health practitioner or student who is the subject of an inquiry by an Impaired Registrants Panel is entitled to make oral or written representations to the Panel about the matters being or to be the subject of the inquiry.(2) This section does not prevent the Panel from conducting an inquiry in the absence of the registered health practitioner or student to whom it relates, if the practitioner or student has been given notice of the inquiry.
152I Assessment, report and recommendations by Panel [NSW]
(1) An Impaired Registrants Panel must make an assessment about a matter referred to it, based on the results of its inquiry into the matter.(2) On the basis of its assessment, the Panel may do any one or more of the following—(a) counsel the practitioner or student concerned or recommend the practitioner or student undertake specified counselling (including, but not limited to, psychological counselling);(b) recommend the practitioner or student concerned to agree to conditions being placed on the practitioner’s or student’s registration or to having the practitioner’s or student’s registration suspended for a specified period;(c) make recommendations to the Council that referred the matter to it as to action that the Panel considers should be taken in relation to the matter.(3) The Panel must give a written report about the matter to the Council that referred the matter to it.(4) The report must detail—(a) the results of the Panel’s inquiries and assessment in respect of the referral; and(b) any action taken by the Panel in relation to it.
152J Voluntary suspension or conditions on registration [NSW]
A Council may impose conditions on a registered health practitioner’s or student’s registration, or suspend the practitioner’s or student’s registration, if—(a) an Impaired Registrants Panel has recommended the Council do so; and(b) the Council is satisfied the practitioner or student has voluntarily agreed to the conditions.
152K Review of conditions [NSW]
(1) A registered health practitioner or student who agrees to conditions being imposed on the practitioner’s or student’s registration, or to have the registration suspended, may by written notice to the Council ask—(a) that the conditions be altered or removed; or(b) that the suspension be terminated or shortened.(2) On receipt of the request, the Council must require an Impaired Registrants Panel to review the matter and give a written report to the Council on the results of its review.(3) If the Panel recommends that the Council refuse to alter or remove any of the conditions, or refuse to terminate or shorten the suspension, the Council may do so.(4) The Council must give the health practitioner or student written notice of its decision.(5) The Council may specify in the notice a period in which a further request by the practitioner or student under this section is not permitted.(6) The Council may refuse a request that the conditions be altered or removed, or that the suspension be terminated or shortened, if it is made during that period.
152L Some matters to be dealt with as complaints [NSW]
(1) If an Impaired Registrants Panel recommends that a registered health practitioner or student agree to conditions being imposed on the practitioner’s or student’s registration or to having the practitioner’s or student’s registration suspended and the practitioner or student fails to agree with the recommendation, the Council must deal with the matter that was the subject of the referral to the Panel as a complaint against the practitioner or student.(2) If the Panel recommends that a matter referred to it be dealt with as a complaint, the Council must deal with the matter as a complaint against the health practitioner or student concerned.(3) In any other case that the Council thinks it appropriate to do so, the Council may treat a matter that has been referred to an Impaired Registrants Panel as grounds for a complaint under this Law and may deal with the matter accordingly.
152M Prohibition or conditions on student [NSW]
(1) An Impaired Registrants Panel that investigates a matter about a student may recommend to the Council that referred the matter to the Panel that it is in the public interest for the Council—(a) to suspend the student’s registration; or(b) to impose specified conditions on the student’s registration.(2) If the Council is satisfied it is in the public interest to do so, the Council may by written order take the action recommended by the Panel.(3) The order takes effect when notice of it is served on the education provider with which the student is undertaking the approved program of study or who arranged clinical training for the student.(4) An order remains in force for the period, not more than 2 years, specified in the order unless it is sooner revoked by the Council.(5) The Council may issue further orders in respect of a student but only on the recommendation of an Impaired Registrants Panel.
Division 5 Performance assessment [NSW]
Subdivision 1 Preliminary [NSW]
153 Meaning of “professional performance” [NSW]
For the purposes of this Division, a reference to the professional performance of a registered health practitioner is a reference to the knowledge, skill or judgment possessed and applied by the practitioner in the practice of the practitioner’s health profession.
153A Meaning of “unsatisfactory” in relation to professional performance [NSW]
For the purposes of this Division, the professional performance of a registered health practitioner is unsatisfactory if it is below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
Subdivision 2 Council may obtain performance assessment [NSW]
154 Power to obtain assessment [NSW]
(1) A Council may decide to have the professional performance of a registered health practitioner assessed under this Division if a matter comes to its attention that indicates the professional performance of the registered health practitioner, or any aspect of the practitioner’s professional performance, is or may be unsatisfactory.(2) Subsection (1) is not limited to matters that are the subject of a complaint or notification to the Council and may include a pattern of complaints about a registered health practitioner’s practice.
154A Serious matters not to be referred for assessment [NSW]
(1) A Council must not have the professional performance of a registered health practitioner assessed if a matter giving rise to the proposed assessment—(a) raises a significant issue of public health or safety that, in the Council’s opinion, requires investigation by the Commission; or(b) raises a prima facie case of professional misconduct by the registered health practitioner, or unsatisfactory professional conduct by the registered health practitioner.(2) The matter must be dealt with as a complaint.
154B Persons may notify Council of professional performance matters [NSW]
(1) A person may notify the Council for a health profession of a matter the person thinks indicates the professional performance of a health practitioner registered in the profession is unsatisfactory.(2) The Council must not have the professional performance of the practitioner assessed on the basis of a notification if it is made anonymously.
154C Commission may refer professional performance matters to Council [NSW]
(1) If the Commission becomes aware of a matter the Commission considers indicates the professional performance of a health practitioner registered in a health profession is unsatisfactory, the Commission may refer the matter to a Council for the profession.(2) This section does not affect the functions of a Council in relation to a complaint made to the Commission or a matter referred to the Commission for investigation.
Subdivision 3 Assessment of professional performance by assessor [NSW]
155 How Council obtains an assessment [NSW]
A Council has the professional performance of a registered health practitioner assessed by having one or more assessors conduct an assessment of the practitioner’s professional performance, or of any particular aspect or aspects of the practitioner’s professional performance.
155A Information to be given to health practitioner [NSW]
(1) As soon as practicable after deciding to have the professional performance of a registered health practitioner assessed, a Council must give the practitioner written notice of the decision.(2) The notice must include the following—(a) details of the matter that gave rise to the assessment;(b) information about how the performance assessment process works.
155B Report and recommendations by assessor [NSW]
(1) An assessor who is required by a Council to conduct a performance assessment in relation to a registered health practitioner must—(a) conduct an assessment of the practitioner’s professional performance; and(b) give a written report about the assessment to the Council.(2) The report must include the recommendations the assessor considers appropriate.(3) If more than one assessor is appointed to conduct a performance assessment in relation to a registered health practitioner, the report may be made jointly or separately, but in any case must be made in the way directed by the Council.
155C Action that may be taken by Council [NSW]
(1) After receiving the report of an assessor about a performance assessment, a Council may—(a) decide that no further action should be taken in respect of the registered health practitioner the subject of the report; or(b) require a Performance Review Panel to conduct a performance review in relation to the practitioner; or(c) make a complaint against the practitioner; or(d) refer the matter to an Impaired Registrants Panel; or(e) counsel the practitioner or direct the practitioner to attend counselling.(2) A Council must make a complaint against the practitioner concerned if the assessment—(a) raises a significant issue of public health or safety that, in the opinion of the Council, requires investigation by the Commission; or(b) raises a prima facie case of professional misconduct by a registered health practitioner, or unsatisfactory professional conduct by a registered health practitioner.(3) This section does not limit a Council’s powers under section 150.
Subdivision 4 Performance review by Performance Review Panel [NSW]
156 Panel to conduct performance review [NSW]
(1) If required by a Council, a Performance Review Panel must conduct a review of the professional performance of a registered health practitioner.(2) The chairperson of the Panel must inform the registered health practitioner in writing that a performance review will be conducted not less than 14 days before the time and place appointed for the performance review.
156A Panel not to take action while Commission investigating [NSW]
(1) The Performance Review Panel is not to take any action in relation to the registered health practitioner if the Panel becomes aware the practitioner is the subject of a complaint that is being investigated by the Commission.(2) Subsection (1) does not apply if the Commission agrees to the continuation of the performance review.
156B Panel must refer certain matters to Council [NSW]
(1) The Performance Review Panel must terminate the performance review if, before or during the performance review, the Panel forms the opinion that—(a) the performance review raises a significant issue of public health or safety that, in the Panel’s opinion, requires investigation by the Commission; or(b) the performance review raises a prima facie case of professional misconduct by the registered health practitioner, or unsatisfactory professional conduct by the registered health practitioner.(2) If the Panel terminates the performance review, it must refer the issue or case back to the Council with a recommendation that a complaint be made against the registered health practitioner.(3) The Council must deal with the matter in accordance with the recommendation.
(1) At the completion of the performance review, the Performance Review Panel may make the recommendations to the Council about the registered health practitioner the Panel considers appropriate.(2) Without limiting subsection (1), if the Panel finds the professional performance of the registered health practitioner, or a particular aspect of the professional performance of the practitioner, is unsatisfactory, the Panel may do any one or more of the following things—(a) impose the conditions, relating to the practitioner’s practise of the health profession, it considers appropriate on the practitioner’s registration;(b) order the practitioner to complete an educational course specified by the Panel;(c) order the practitioner to report on the practitioner’s practise of the health profession at the times, in the way and to the persons specified by the Panel;(d) order the practitioner to seek and take advice, in relation to the management of the practitioner’s practice, from the persons specified by the Panel.(3) The Panel must recommend to the Council that a complaint be made against the registered health practitioner if the Panel finds the matter—(a) raises a significant issue of public health or safety that requires investigation by the Commission; or(b) raises a prima facie case of professional misconduct by the practitioner, or unsatisfactory professional conduct by the health practitioner.(4) If the Panel makes a recommendation that a complaint be made against the registered health practitioner, the Council must act in accordance with the recommendation.(5) In any other case that the Council thinks it appropriate to do so, the Council may make a complaint in respect of a matter that has been considered by a Performance Review Panel, after consulting with the Commission.
(1) Without limiting section 156C, a Performance Review Panel may direct that a registered health practitioner’s professional performance be re-assessed at a future date.(2) A Council must have one or more assessors conduct that assessment, when it is required, and report to the Council on the assessment.(3) The Council may take any action in respect of that assessment that is available to the Council under section 155C, including requiring a Performance Review Panel to conduct a further performance review in relation to the practitioner.
(1) A Performance Review Panel must give a written statement of a decision on a performance review of a registered health practitioner to—(a) the registered health practitioner; and(b) the Council.(2) The statement of the decision must—(a) include reasons for the decision; and(b) be given to the registered health practitioner and the Council within one month after the decision is made.(3) The Council may provide a copy of the statement of decision to the persons the Council or Panel thinks fit.
156F Statement need not contain confidential information [NSW]
(1) A Performance Review Panel is not required to include confidential information in the statement of a decision.(2) If the statement would be false or misleading if it did not include the confidential information, the Panel is not required to provide the statement.(3) If confidential information is not included in the statement given to a person or the statement is not given to a person because of subsection (2), the Panel must give a confidential information notice to the person.(4) A confidential information notice must be given within one month after the decision is made.(5) 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, subject to the provisions of this Law relating to protected reports.
Subdivision 5 Miscellaneous [NSW]
157 Monitoring by Council [NSW]
(1) Following a performance review, the Council must—(a) monitor compliance with any decisions or orders made by the Performance Review Panel; and(b) from time to time, evaluate the effectiveness of those orders in improving the professional performance of the registered health practitioner concerned to a standard that is commensurate with other practitioners of an equivalent level of training or experience.(2) The Council may take any action under this Law in respect of a registered health practitioner that it considers appropriate as a result of the exercise of its functions under subsection (1).
Division 6 Appeals to Tribunal [NSW]
Subdivision 1 Appeals against actions of Committee [NSW]
158 Appeals against decisions of Committee [NSW]
(1) If a complaint about a registered health practitioner or student is referred to a Committee, the practitioner or student or the complainant, may appeal against any of the following to the Tribunal for the health profession—(a) a finding of the Committee;(b) the exercise of a power by the Committee under Subdivision 3 of Division 3;(c) the exercise by the Chairperson or a Deputy Chairperson of the Tribunal of a power under that Subdivision.(2) The appeal is to be dealt with by way of rehearing and fresh evidence, or evidence in addition to or in substitution for the evidence received at the inquiry, may be given.(3) The Tribunal may—(a) dismiss the appeal; or(b) make any finding or exercise any power the Tribunal could have made or exercised if the complaint had been originally referred to the Tribunal.(4) An appeal under this section does not affect any finding or exercise of power with respect to which it has been made until the Tribunal makes an order on the appeal.
158A Appeals on points of law [NSW]
(1) A registered health practitioner or student about whom a complaint is referred to a Committee or the complainant may appeal with respect to a point of law to the Chairperson of the Tribunal or a Deputy Chairperson nominated by the Chairperson.(2) An appeal may be made—(a) during an inquiry—within 28 days after the date of the Committee’s decision on the point of law which is the subject of the appeal; or(b) before the commencement of an inquiry but after the date of giving notice of the inquiry.(3) If an inquiry conducted by a Committee has not been completed when an appeal is made, the inquiry must not continue until the appeal has been disposed of.(4) The Committee must not make any decision that is inconsistent with the Chairperson’s or Deputy Chairperson’s determination with respect to the point of law.
Subdivision 2 Appeal against actions by Council [NSW]
(1) A person may appeal to the Tribunal for a health profession—(a) against a suspension by the Council for the health profession under Division 3 or a refusal to end a suspension; or(b) against conditions imposed by the Council for the health profession on the person’s registration under Division 3 or 4 or the alteration of the conditions by the Council; or(c) against a refusal by the Council for the health profession to alter or remove conditions imposed by the Council under Division 3 in accordance with a request made by the person under section 150I; or(d) against a decision by the Council for the health profession to give a direction or make an order in relation to the person under section 148E; or(e) against a refusal by the Council for the health profession to alter or remove conditions imposed on the person’s registration, or to end a suspension, imposed under Division 4 in accordance with a request made by the person under section 152K.(2) An appeal may not be made in respect of a request by a person that is rejected by a Council because it was made during a period in which the request was not permitted under section 150I or 152K.(3) The appeal is to be dealt with by reconsideration of the matter by the Tribunal and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council when it considered the matter, may be given.
159A Appeal by student against order [NSW]
(1) A student may appeal to the Tribunal for a health profession against a decision of the Council for the health profession to issue an order—(a) suspending the student’s registration; or(b) imposing conditions on the student’s registration.(2) The appeal must be lodged with the Executive Officer who must refer it to the Tribunal.(3) The appeal must be made within 28 days, or the longer period as the Executive Officer may allow in a particular case, after notice of the Council’s decision is given to the student.(4) On an appeal, the Tribunal may by order terminate, vary or confirm the order, as it thinks proper.
159B Appeal on point of law [NSW]
(1) A registered health practitioner or student who is the subject of action taken by the Council for the health profession under section 150, 150A or 150C may appeal, with respect to a point of law, to the Chairperson or a Deputy Chairperson of the Tribunal for the health profession.(2) Subsection (1) does not limit a right of appeal under section 159.(3) The Council must not make a decision that is inconsistent with the Tribunal’s decision with respect to a point of law under this section.(4) A registered health practitioner or student may not make an application to the Supreme Court for judicial review of action taken by a Council under section 150, 150A or 150C, being an application alleging any error of law, until an appeal under this section in respect of the point of law concerned has been made and disposed of.
159C Tribunal’s powers on appeal [NSW]
(1) On an appeal, a Tribunal may by order terminate, vary or confirm a period of suspension or revoke, vary or confirm the conditions, as it thinks proper.(2) A Tribunal’s order must not cause a suspension or conditions imposed by a Council to have effect beyond the day on which a related complaint about the person is disposed of.
Subdivision 3 Appeal against actions of Performance Review Panel [NSW]
160 Appeals against decisions of Panel [NSW]
(1) A registered health practitioner who is the subject of a performance review may appeal to the Tribunal against a decision of the Performance Review Panel or any order or direction made by the Panel under Division 5.(2) The appeal is to be dealt with by way of rehearing and fresh evidence, or evidence in addition to or in substitution for the evidence received at the performance review, may be given.(3) The Tribunal may, as it thinks appropriate—(a) dismiss the appeal; or(b) make any finding or exercise any power or combination of powers that the Performance Review Panel could have made or exercised.
160A Appeals on points of law [NSW]
(1) A registered health practitioner who is the subject of a performance review may appeal with respect to a point of law to the Tribunal for the health profession in which the practitioner is registered.(2) An appeal may be made—(a) during a performance review—within 28 days after the date of the Performance Review Panel’s decision on the point of law that is the subject of the appeal; or(b) before the commencement of a performance review but after the date the practitioner is informed of the performance review.(3) If a performance review has not been completed when an appeal is made, the Performance Review Panel must not continue with the performance review until the appeal has been disposed of.(4) The Performance Review Panel must not make any decision that is inconsistent with the Tribunal’s determination with respect to the point of law.
Subdivision 4 Miscellaneous [NSW]
161 When appeal must be made [NSW]
An appeal under this Division or Division 14A, other than an appeal on a point of law, must be made—(a) within 28 days after the day the person making the appeal was given notice of the decision being appealed against; or(b) within the longer period allowed by the Executive Officer.
The appeal must be lodged with the Executive Officer who must refer it to the Tribunal.
161B Appeal does not stay decision [NSW]
An appeal under this Division does not operate to stay the effect of the decision being appealed against unless the Chairperson or a Deputy Chairperson of the Tribunal otherwise orders.
Division 7 Appeals to Supreme Court [NSW]
162 Appeal against Tribunal’s decisions and actions [NSW]
(1) A person about whom a complaint is referred to the Tribunal, or the complainant, may appeal to the Supreme Court against—(a) a decision of the Tribunal with respect to a point of law; or(b) the exercise of a power by the Tribunal under Subdivision 6 of Division 3.(2) A person who is a party to an appeal to the Tribunal against the exercise by the Chairperson or a Deputy Chairperson of the Tribunal of any power under Subdivision 6 of Division 3 (including the complainant in respect of the matter), may appeal to the Supreme Court against—(a) a decision of the Tribunal with respect to a point of law; or(b) the exercise of any power by the Tribunal under section 158.(3) An appeal under this section must be made within 28 days (or the longer period allowed by the Supreme Court in a particular case) after the handing down of the decision or the exercise of power against which the appeal is made.(4) The Supreme Court may stay any order made by the Tribunal, on the terms the Court sees fit, until the time the Court decides the appeal.
162A Powers of Supreme Court on appeal [NSW]
(1) In deciding the appeal, the Supreme Court may—(a) dismiss the appeal; or(b) make the order it thinks proper having regard to the merits of the case and the public welfare, and in doing so may exercise any one or more of the powers of the Tribunal under this Law.(2) If the Supreme Court dismisses an appeal against an order of the Tribunal, the Court may by order direct that the Tribunal’s order is to be taken to include provision that an application for its review under Subdivision 3 of Division 6 may not be made until after a specified time.
163 Appropriate review body [NSW]
(1) For the purposes of this Division, the appropriate review body is—(a) if the order being reviewed provides that it may be reviewed by a Council, the Council; or(a1) if the Chairperson of the Tribunal decides, on application by the person the subject of the review or the Commission, that a Council is the appropriate review body, the Council; or(b) if the Chairperson of the Tribunal decides, on application by the person the subject of the review, that a National Board is the appropriate review body, the National Board; or(c) otherwise, the Tribunal.(2) An application for review by a person must be lodged with the Executive Officer of the Council for the health profession in which the person is or was registered.(3) The Executive Officer must refer the application to the appropriate review body.
(1) A person may apply to the appropriate review body for a review of—(a) a prohibition order made in relation to the person; or(b) a relevant order made in relation to the person.(2) A person may also apply to the appropriate review body for a review of an order made under this Division.(3) An application for review of an order may not be made—(a) while the terms of the order provide that an application for review may not be made; or(b) while an appeal to a Tribunal or the Supreme Court in respect of the same matter is pending.(4) In this section—decision-making entity means the following—
(a) a Committee;(b) a Performance Review Panel;(b1) a Council, but only in relation to orders made under this Division or under Subdivision 5 of Division 3;(c) the Chairperson or Deputy Chairperson of a Tribunal;(d) a Tribunal;(e) the Supreme Court.relevant order, in relation to a person, means any of the following orders made by a decision-making entity—
(a) an order that the person’s registration as a registered health practitioner or student is suspended; or(b) an order that the person’s registration be cancelled or that the person is disqualified from being registered in a particular health profession; or(c) an order that conditions be imposed on the person’s registration in a health profession.
(1) The appropriate review body must conduct an inquiry into an application for review and may then do any of the following—(a) dismiss the application;(b) make an order ending or shortening the period of the suspension concerned;(c) make a reinstatement order;(d) make an order altering or removing the conditions to which the person’s registration is subject, including by imposing new conditions;(e) make an order—(i) ending or shortening the period of a prohibition order; or(ii) altering or removing the conditions to which the person is subject under a prohibition order, including by imposing new conditions.(2) If the appropriate review body makes an order altering a critical compliance condition, or removing a critical compliance condition and imposing a new condition, the altered condition or new condition is a critical compliance condition unless the body orders otherwise.(3) A reinstatement order is an order that the person may be registered in accordance with Part 7 if—(a) the person makes an application for registration to the National Board; and(b) the relevant National Board decides to register the person.(3A) Any condition imposed on a person’s registration by the National Board under Part 7 applies but only to the extent that it is not inconsistent with conditions imposed or altered by the appropriate review body under subsection (4).(4) The appropriate review body may also impose conditions on the person’s registration or alter the conditions to which the person’s registration is to be subject under the reinstatement order.(5) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time.
163C Inquiry into review application [NSW]
(1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned.(2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision.(3) In addition to any other matter the review may take into account, the review must take into account any complaint made or notified to a Council or a National Board, or a former Board under a repealed Act, about the person, whether the complaint was made or notified before or after the making of the order that is the subject of the review and whether or not the complaint was referred under Subdivision 2 of Division 3 or any other action was taken on the complaint.
Division 9 Enforcement powers [NSW]
164 Appointment of authorised persons [NSW]
(1) The Director-General may appoint a person as an authorised person for the purposes of this Division.(2) The Director-General must provide an authorised person with a certificate of authority.
164A Powers of authorised persons [NSW]
(1) An authorised person may exercise the powers conferred by this section for the purpose of—(a) ascertaining whether the NSW provisions or the NSW regulations are being complied with or have been contravened; or(b) investigating a complaint made or intended to be made under Division 3.(2) An authorised person may, with the approval of the Council for a health profession, given on the particular occasion, enter and inspect at any reasonable time premises that the authorised person believes on reasonable grounds are being used for the carrying on of the practice of the health profession.(3) While on premises entered under this section or under the authority of a search warrant under section 164B, an authorised person may do any one or more of the following—(a) require any person on the premises to produce any records in the possession or under the control of that person relating to the carrying on of the practice of the health profession;(b) inspect, take copies of, or extracts or notes from, the records and, if the authorised person considers it necessary to do so for the purpose of obtaining evidence, seize the records;(c) examine and inspect any apparatus or equipment used or apparently used in the course of the practice of the health profession;(d) take photographs, films and audio, video and other recordings as the authorised person considers necessary;(e) require any person on the premises to answer questions or otherwise furnish information in relation to the carrying on of the practice of a health profession or a contravention of a NSW provision or the NSW regulations;(f) require the owner or occupier of the premises to give the authorised person the assistance and facilities as is or are reasonably necessary to enable the authorised person to exercise the functions of an authorised person under this section.(4) An authorised person is not entitled to enter a part of premises used for residential purposes, except—(a) with the consent of the occupier of the part; or(b) under the authority of a search warrant.(5) An authorised person must, when exercising on any premises any function of the authorised person under this section, produce the authorised person’s certificate of authority to any person apparently in charge of the premises who requests its production.(6) If an authorised person seizes any records under this section, they may be kept by the authorised person until the completion of any proceedings (including proceedings on appeal) in which they may be evidence but only if the person from whom the records were seized is given, within a reasonable time after the seizure, a copy of the records certified by an authorised person as a true copy.(7) A copy of a record given under subsection (6) is, as evidence, of equal validity to the record of which it is certified to be a copy.
(1) A person appointed under this Division as an authorised person may apply to an authorised officer for the issue of a search warrant for premises if the authorised person believes on reasonable grounds—(a) a NSW provision or the NSW regulations is being contravened on the premises; or(b) there is on the premises evidence of a contravention of a provision of this Law or the NSW regulations.(2) The authorised officer may, if satisfied there are reasonable grounds for doing so, issue a search warrant authorising an authorised person named in the warrant—(a) to enter and inspect the premises; and(b) to exercise on the premises any function of an authorised person under section 164A.(3) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.(4) In this section—authorised officer has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002.
(1) A person must not—(a) prevent an authorised person from exercising any function conferred or imposed on the authorised person under this Division; or(b) hinder or obstruct an authorised person in the exercise of a function conferred or imposed on the authorised person under this Division; or(c) without reasonable excuse, refuse or fail to comply with any requirement made or to answer any question asked by an authorised person under this Division; or(d) give an authorised person information knowing it to be false or misleading in a material particular.Maximum penalty—
(a) for an offence under paragraph (a) or (b)—50 penalty units; or(b) for an offence under paragraph (c) or (d)—20 penalty units.(2) It is a sufficient defence to a prosecution for the offence under paragraph (c) of failing to answer a question asked by an authorised person if the defendant satisfies the court that the defendant did not know, and could not with reasonable diligence have ascertained, the answer to the question.
(1) A person is not excused from answering a question asked by an authorised person under this Division on the ground the answer might tend to incriminate the person.(2) However, information furnished by an individual in answering a question asked by an authorised person under this Division is not admissible against the individual in criminal proceedings (except proceedings for an offence against section 164C) if—(a) the individual objected at the time of doing so on the ground it might incriminate the individual; or(b) the individual was not warned on that occasion that the individual may object to furnishing the information on the ground it might incriminate the individual.(3) A person is not excused from producing a record to an authorised person under this Division on the ground the record might tend to incriminate the person, and the record is not inadmissible in evidence against the person in criminal proceedings on the ground the record might incriminate the person.Note. Section 187 of the Evidence Act 1995 provides that the privilege against self-incrimination does not apply to bodies corporate.
164E Offence of impersonating authorised person [NSW]
A person must not—(a) impersonate an authorised person; or(b) falsely represent the person is an authorised person.Maximum penalty—50 penalty units.
164F Authorised persons to produce certificate of authority [NSW]
An authorised person must, on exercising in a place a function of the authorised person under this Division, produce the person’s certificate of authority to any person apparently in charge of the place who requests its production.
164G Council may require further information from practitioner or student [NSW]
(1) A Council for a health profession may, by written notice given to a registered health practitioner or student registered in the profession, require the practitioner or student to give to the Council, within a reasonable period specified in the notice, further information about any complaint or other matter concerning the practitioner or student.(2) A registered health practitioner or student must not—(a) without reasonable excuse, fail to comply with a requirement under this section; or(b) in purported compliance with a requirement under this section, provide information knowing it to be false or misleading in a material particular.Maximum penalty—20 penalty units.
Subdivision 1 Establishment of Tribunals [NSW]
165 Establishment of Tribunals [NSW]
(1) Each of the following Tribunals is established for the health profession listed beside that Tribunal in the following Table—
Table—Tribunals
Name of Tribunals
Health profession
Aboriginal and Torres Strait Islander Health Practice Tribunal of New South Wales
Aboriginal and Torres Strait Islander health practice
Chinese Medicine Tribunal of New South Wales
Chinese medicine
Chiropractic Tribunal of New South Wales
chiropractic
Dental Tribunal of New South Wales
dental (including the profession of a dentist, dental hygienist, dental prosthetist, dental therapist or oral health therapist)
Medical Radiation Practice Tribunal of New South Wales
medical radiation practice
Medical Tribunal of New South Wales
medical
Nursing and Midwifery Tribunal of New South Wales
nursing and midwifery
Occupational Therapy Tribunal of New South Wales
occupational therapy
Optometry Tribunal of New South Wales
optometry
Osteopathy Tribunal of New South Wales
osteopathy
Pharmacy Tribunal of New South Wales
pharmacy
Physiotherapy Tribunal of New South Wales
physiotherapy
Podiatry Tribunal of New South Wales
podiatry
Psychology Tribunal of New South Wales
psychology
(2) The Governor may, by order published on the NSW legislation website, amend the Table to subsection (1) by inserting, altering or omitting the name of a Tribunal or health profession.(3) A Tribunal is to be constituted in accordance with this Law to deal with a matter referred to it or an appeal or application made to it under this Law.(4) A Tribunal has and may exercise the jurisdiction and functions conferred or imposed on it by or under this Law or any other Act.
165A Tribunal to be constituted to deal with complaints, applications and appeals [NSW]
(1) If a complaint is referred to a Tribunal for a health profession or an application or appeal is made to the Tribunal, the Council for the health profession must—(a) inform the Chairperson of the Tribunal of the referral, application or appeal; and(b) appoint 3 other persons to sit on the Tribunal.(2) For the purpose of conducting an inquiry or hearing an appeal, the Tribunal is to consist of—(a) the Chairperson or a Deputy Chairperson, as nominated by the Chairperson; and(b) 2 health practitioners registered in the same health profession as the health practitioner or student the subject of the inquiry or appeal and having the qualifications prescribed by the NSW regulations; and(c) one lay person (that is, a person who is not registered in the health profession) appointed by the Council from among a panel of lay persons for the time being nominated by the Minister.(3) If the health profession has divisions, at least one and, if practicable, both, of the members appointed under subsection (2)(b) must be registered in the same division of the health profession as the health practitioner or student the subject of the inquiry or hearing.(4) A person is not to be appointed to sit on the Tribunal if the person is a member of the Council.(5) A Tribunal, as constituted by different persons or the same persons, may conduct or hear more than one inquiry or appeal at the same time.(6) An inquiry or appeal conducted or heard by a Tribunal may relate to more than one health practitioner or student if the complaint or complaints the subject of the inquiry or appeal arise from the same conduct.
165B Chairperson and Deputy Chairpersons of Tribunals [NSW]
(1) The Governor may appoint—(a) a qualified person as Chairperson of a Tribunal; and(b) one or more qualified persons as Deputy Chairpersons of a Tribunal.(2) The Chairperson and each Deputy Chairperson hold office for the period, not more than 7 years, specified in the instrument of appointment as Chairperson or Deputy Chairperson, but is eligible (if otherwise qualified) for re-appointment.(3) A Deputy Chairperson may be appointed by the Governor for the purpose only of conducting or hearing a particular inquiry or appeal described in the instrument of appointment of the Deputy Chairperson.(4) A Deputy Chairperson, while sitting on a Tribunal, has and may exercise all the functions conferred or imposed on a Chairperson by this Law.(5) If the period of a person’s appointment as Chairperson or Deputy Chairperson expires while the person is sitting on a Tribunal for the purposes of an inquiry or an appeal, the person may, despite that expiry, continue to sit on the Tribunal for the purpose of that inquiry or appeal (the continuing inquiry or appeal).(6) For the purposes of the conduct or hearing of the continuing inquiry or appeal (and any provision of this Law or the regulations with respect to the inquiry or appeal), the person referred to in subsection (5)—(a) is taken to be a Deputy Chairperson; and(b) has and may exercise only the functions conferred or imposed on a Deputy Chairperson under this Law; and(c) may exercise the functions only in respect of the continuing inquiry or appeal.(7) A Chairperson or Deputy Chairperson sitting on a Tribunal is entitled to be paid the remuneration (including travelling and subsistence allowances) decided by the Minister from time to time.(8) The Governor may appoint a Deputy Chairperson to act in the office of Chairperson during the illness or absence of a Chairperson and the Deputy Chairperson, while so acting, has and may exercise all the functions of the Chairperson and is taken to be the Chairperson.(9) If a person who is a Chairperson or Deputy Chairperson ceases to be a qualified person, the person also ceases to hold office as Chairperson or Deputy Chairperson.(10) In this section, qualified person means—(a) for the Medical Tribunal of New South Wales, a Judge of the Supreme Court (or a Judge or other person having the same status as a Judge of the Supreme Court) or a Judge of the District Court; and(b) for another Tribunal, an Australian lawyer of at least 7 years’ standing.
165C Effect of vacancy on Tribunal [NSW]
(1) If one of the members (other than a Chairperson or Deputy Chairperson) constituting a Tribunal for the purpose of conducting a hearing vacates office for any reason before an inquiry or appeal is completed or a decision is made in respect of an inquiry or appeal, the inquiry or appeal may be continued and a determination made by the remaining members of the Tribunal.(2) If more than one of the members vacate office or the Chairperson or Deputy Chairperson vacates office for any reason before a Tribunal has completed an inquiry or appeal or made a determination in respect of an inquiry or appeal, the inquiry or appeal is terminated.(3) When an inquiry or appeal is terminated, a Tribunal may be reconstituted in accordance with this Division for the purposes of conducting a new inquiry or appeal in respect of the matter concerned.
165D Payment of non-judicial and non-legal Tribunal members [NSW]
A member of a Tribunal (other than a Chairperson or a Deputy Chairperson) is, while sitting on the Tribunal, entitled to be paid by the Council at a rate decided by the Minister in consultation with the Council.
165E Protections and immunities of judicial members [NSW]
A judicial member of a Tribunal has, in the exercise of his or her functions under this Division, the same protection and immunity as a Judge of the Supreme Court.
A Tribunal is to have a seal of which all courts and persons acting judicially are to take judicial notice.
165G Medical Tribunal Registry [NSW]
There is to be established in the Registry of the District Court at Sydney a Registry for the Medical Tribunal of New South Wales to provide registry services for the Tribunal.
Subdivision 2 Proceedings of Tribunals [NSW]
166 Decisions of Tribunals [NSW]
(1) The decision of a Chairperson or a Deputy Chairperson of a Tribunal on a question of law or procedure arising during an inquiry or appeal at which the Chairperson or Deputy Chairperson presides is the decision of the Tribunal for the purposes of the inquiry or appeal.(2) A decision supported by at least 3 members of a Tribunal with respect to a question (other than with respect to a point of law or procedure) arising during an inquiry or appeal before the Tribunal is the decision of the Tribunal.(3) If 2 members of a Tribunal support a decision and 2 members oppose the decision, the decision of the Chairperson or Deputy Chairperson presiding is the decision of the Tribunal.
166A Time when orders take effect [NSW]
An order of a Tribunal takes effect on—(a) the day on which the order is made; or(b) the later day specified in the order.
166B Powers of Tribunal exercised by Supreme Court [NSW]
A power of a Tribunal exercised under this Law by the Supreme Court is, except for the purposes of an appeal, taken to have been exercised by the Tribunal.
166C Executive Officer to be informed of disciplinary action [NSW]
A Tribunal for a health profession must inform the Executive Officer of the Council for the health profession of the exercise of any power under this Part by the Tribunal.
166D Rules of practice and procedure for the Medical Tribunal [NSW]
A rule committee consisting of the Chairperson and Deputy Chairperson of the Medical Tribunal of New South Wales may make rules, not inconsistent with this Law, governing the practice and procedure of the Tribunal.
Subdivision 3 Inquiries and appeals before Tribunal [NSW]
(1) A Tribunal must—(a) conduct an inquiry into a complaint, matter or application referred to it; and(b) hear any appeal referred to it.(2) No inquiry need be conducted into a complaint referred to a Tribunal if the registered health practitioner or student who is the subject of the complaint admits the subject-matter of the complaint in writing to the Tribunal.
167A Notice of time and place of inquiry or appeal [NSW]
(1) A Chairperson or Deputy Chairperson nominated to sit on a Tribunal for a health profession must fix a time and place for the conducting of the inquiry or the hearing of the appeal by the Tribunal.(2) The Chairperson or Deputy Chairperson must give not less than 14 days’ notice of the inquiry or appeal to each of the following—(a) the registered health practitioner or student the subject of the inquiry or appeal;(b) the complainant, if any;(c) (Repealed)(d) the Council for the health profession;(e) for an inquiry into a complaint, the Commission;(f) the Chairperson of the relevant Committee, if appropriate.
167B Conduct of proceedings [NSW]
(1) A Tribunal may conduct proceedings on an inquiry or appeal as it thinks fit.(2) Proceedings of a Tribunal are to be open to the public except when the Tribunal otherwise directs.(3) A Tribunal is not to direct that proceedings are to be closed to the public unless satisfied that it is desirable to do so in the public interest for reasons connected with the subject-matter of the inquiry or appeal or the nature of the evidence to be given.
167C Representation before Tribunals [NSW]
(1) At an inquiry conducted or appeal heard by a Tribunal, the registered health practitioner or student and any complainant concerned are entitled to attend and to be represented by—(a) an Australian legal practitioner; or(b) with the leave of the Chairperson or Deputy Chairperson presiding, another adviser.(2) A Tribunal may grant leave for another person to appear (whether in person or by an Australian legal practitioner or another adviser) at an inquiry or appeal if the Tribunal is satisfied that it is appropriate for the person to appear.(3) This section does not prevent a Tribunal from proceeding in the absence of the registered health practitioner or student concerned, as long as the practitioner or student has been given notice of the inquiry or appeal.
167D Chairperson or Deputy Chairperson not to review own decisions [NSW]
A Chairperson or Deputy Chairperson must not sit on a Tribunal for the purpose of conducting any inquiry or hearing any appeal relating to a particular matter before the Tribunal if a decision has been made by the Chairperson or Deputy Chairperson in relation to the matter.
167E Adjournments and interlocutory orders [NSW]
(1) A Tribunal may adjourn proceedings for any reason it thinks fit.(2) A Tribunal may, during any proceedings, exercise any power or combination of powers conferred on the Tribunal by section 149A, except the power to caution or reprimand.(3) A Tribunal may, in respect of an appeal under section 159B, make an order staying the decision of the Council appealed against until the appeal has been disposed of.
167F Tribunals to provide details of decisions [NSW]
(1) As soon as practicable after making a decision on an inquiry or an appeal (bearing in mind the public welfare and seriousness of the matter), a Tribunal must give a written statement of the decision to—(a) the complainant; and(b) the registered health practitioner or student the subject of the inquiry or appeal; and(c) the Council for the health profession in which the practitioner or student is registered.(2) The statement of a decision must—(a) set out any findings on material questions of fact; and(b) refer to any evidence or other material on which the findings were based; and(c) give the reasons for the decision.(3) The Tribunal may also provide the statement of a decision to the persons the Tribunal thinks fit.(4) Unless the Tribunal has ordered otherwise, a Council—(a) must make publicly available a statement of a decision given to it under this section if the decision is in respect of a complaint that has been proved or admitted in whole or in part; and(b) may disseminate any other statement of a decision as the Council thinks fit.
167G Statement need not contain confidential information [NSW]
(1) A Tribunal is not required to include confidential information in the statement of a decision.(2) If the statement would be false or misleading if it did not include the confidential information, the Tribunal is not required to provide the statement.(3) If confidential information is not included in the statement given to a person or the statement is not given to a person because of subsection (2), the Tribunal must give a confidential information notice to the person.(4) A confidential information notice must be given within one month after the decision is made.(5) 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, subject to the provisions of this Law relating to protected reports.
Division 11 Professional Standards Committees [NSW]
Subdivision 1 Preliminary [NSW]
In this Division—Committee means a Professional Standards Committee.
relevant health practitioner means a health practitioner registered under this Law in the—
(a) medical profession; or(b) nursing and midwifery profession.
Subdivision 2 Establishment and membership of Committees [NSW]
169 Establishment of Committees [NSW]
(1) There are to be Professional Standards Committees established for the purposes of this Law.(2) A Committee has and may exercise the jurisdiction and functions conferred or imposed on it by or under this Law.
169A Council to establish Committee when required [NSW]
(1) A Council must establish a Committee when a complaint about a relevant health practitioner is referred to a Committee.(2) A Council establishes a Committee by appointing 4 persons to sit as the Committee for the purpose of conducting an inquiry into the complaint.
169B Membership of Committee [NSW]
(1) A Committee consists of—(a) 2 registered health practitioners who—(i) are registered in the same health profession as the relevant health practitioner the subject of the proceedings before the Committee; and(ii) have the qualifications, if any, prescribed by the NSW regulations for that profession; and(b) one person who is an Australian lawyer and not a registered health practitioner and who is to be appointed by the Council as Chairperson of the Committee; and(c) one person, appointed from among a panel of persons for the time being nominated by the Minister, who—(i) is not a registered health practitioner or student in the same health profession as the relevant health practitioner the subject of the proceedings before the Committee; and(ii) has not at any time been registered as a health practitioner or student in that health profession under this Law or a corresponding prior Act.(2) A person who is a member of the Council may not be appointed to sit on a Committee.(3) A member of a Committee, while sitting on the Committee, is entitled to be paid by the Council at a rate decided by the Minister.(4) The rate must be decided by the Minister in consultation with the Council.
Subdivision 3 Proceedings of Committees [NSW]
One or more Committees may conduct more than one inquiry at the same time.
170A How a Committee decides [NSW]
A decision supported by at least 3 members of a Committee on any question arising during an inquiry is the decision of the Committee.
170B Time when orders take effect [NSW]
An order of a Committee takes effect on—(a) the day the order is made; or(b) if a later day is specified in the order, that day.
170C Committee to inform Executive Officer of its actions under disciplinary provisions [NSW]
A Committee must inform the Executive Officer of the exercise of any power by the Committee under Subdivision 3 of Division 3.
170D Chairperson may exercise certain powers of Committee [NSW]
(1) The Chairperson of a Committee may exercise the following powers of the Committee—(a) the power to terminate an inquiry;(b) the power to hand down a decision of the Committee on an inquiry.(2) A power of the Committee exercised by the Chairperson of the Committee is taken to have been exercised by the Committee.
Subdivision 4 Inquiries before Committees [NSW]
171 Committee to hold inquiry into complaint [NSW]
(1) A Committee must hold an inquiry into a complaint about a relevant health practitioner that is referred to it.(2) No inquiry need be held into the complaint if the relevant health practitioner admits the subject-matter of the complaint in writing to the Committee.(3) On appointment, the Chairperson of the Committee must fix a time and place for the holding of an inquiry by the Committee into the complaint.(4) The Chairperson must give not less than 14 days’ notice of the inquiry to—(a) the relevant health practitioner; and(b) the complainant, if any; and(c) (Repealed)(d) the Council for the health profession in which the practitioner is registered; and(e) the Commission.
171A Procedure for inquiry [NSW]
(1) Subject to this section, the Committee may conduct proceedings on the inquiry as it thinks fit.(2) Proceedings of the Committee are to be open to the public unless the Committee directs otherwise.(3) The Committee is not to direct that proceedings are to be closed to the public unless satisfied it is desirable to do so in the public interest because of—(a) the subject-matter of the inquiry; or(b) the nature of the evidence to be given.(4) The Committee may be assisted by an Australian lawyer appointed, at the request of the Committee, by the Executive Officer of the Council.
171B Representation at inquiry [NSW]
(1) At the inquiry held by the Committee, the relevant health practitioner and any complainant are entitled to attend and to be represented by—(a) an Australian legal practitioner; or(b) with the leave of the Chairperson of the Committee, another adviser.(2) Subsection (1) does not prevent the Committee from addressing questions directly to the relevant health practitioner.(3) The Committee may grant leave for any other person to appear at the inquiry if the Committee is satisfied it is appropriate for the person to appear.(4) This section does not prevent the Committee from proceeding in the absence of the relevant health practitioner or the complainant, if the practitioner or complainant has been given notice of the inquiry.
171C Adjournments and interlocutory orders [NSW]
(1) The Committee may adjourn proceedings for any reason it thinks fit.(2) The Committee may, during any proceedings, exercise any power or combination of powers conferred on a Committee by section 146B, except the power to caution or reprimand.
171D Committee must refer certain matters to Tribunal [NSW]
(1) The Committee must immediately terminate the inquiry if, before or during the inquiry, the Committee—(a) forms the opinion the complaint, if substantiated, may provide grounds for the suspension or cancellation of the registration of the relevant health practitioner; or(b) becomes aware the Council or the Commission has referred the complaint or another complaint about the practitioner to the Tribunal.(2) Subsection (1)(a) does not apply to a complaint that the Council decided not to refer to the Tribunal because the allegations on which it, and any other pending complaint against the practitioner, was founded related solely or principally to the practitioner’s physical or mental capacity to practise the practitioner’s profession.(3) If the Committee terminates an inquiry, it must refer the complaint to the Tribunal unless it has already been referred to the Tribunal.(4) The Tribunal to which the complaint is referred may be the Tribunal as already constituted to deal with another complaint or the Tribunal as constituted to deal with the referred complaint.(5) The Committee must inform the Council when it takes any action under this section.
171E Committee to provide details of decision [NSW]
(1) The Committee must give a written statement of its decision on the inquiry to the following within one month after the decision is made—(a) the complainant;(b) the relevant health practitioner;(c) the Council.(2) The statement of decision must—(a) set out any findings on material questions of fact; and(b) refer to any evidence or other material on which the findings were based; and(c) give reasons for the decision.(3) The Committee may also give the statement of decision to any other person the Committee thinks fit.(4) The Council—(a) must make publicly available the statement of decision if the decision is in respect of a complaint that has been proved or admitted in whole or in part; and(b) may disseminate any other statement of decision as the Council thinks fit.(5) Subsection (4) does not apply if the Committee has ordered that the statement is not to be made publicly available.
171F Statement need not contain confidential information [NSW]
(1) A Committee is not required to include confidential information in a statement of a decision given to a person.(2) If the statement would be false or misleading if it did not include the confidential information, the Committee is not required to provide the statement.(3) If confidential information is not included in the statement of a decision given to a person, or a statement is not given to a person because of subsection (2), the Committee must give the person a confidential information notice.(4) A confidential information notice must be given within one month of the decision.(5) 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, subject to the provisions of this Law relating to protected reports.
Division 12 Assessment Committees [NSW]
In this Division—Committee means an Assessment Committee.
relevant health practitioner means a health practitioner registered under this Law other than a health practitioner registered in the—
(a) medical profession; or(b) nursing and midwifery profession.
172A Establishment of Committees [NSW]
(1) There are to be Assessment Committees established for the purposes of this Law.(2) A Committee has and may exercise the jurisdiction and functions conferred or imposed on it by or under this Law.
172B Membership of Committee [NSW]
(1) A Committee consists of the following members appointed by the Minister—(a) 3 registered health practitioners who—(i) are registered in the same health profession as the relevant health practitioner the subject of the proceedings before the Committee; and(ii) have the qualifications, if any, prescribed by the NSW regulations for that profession; and(b) one person, appointed from among a panel of persons for the time being nominated by the Minister, who—(i) is not a registered health practitioner or student in the same health profession as the relevant health practitioner the subject of the proceedings before the Committee; and(ii) has not at any time been registered as a health practitioner or student in that health profession under this Law or a corresponding prior Act.(2) If the health profession has divisions, at least one and, if practicable, all, of the members appointed under subsection (1)(a) must be registered in the same division of the health profession as the health practitioner the subject of the complaint.(3) A person who is a member of the Council may not be appointed to sit on a Committee.(4) A member of a Committee, while sitting on the Committee, is entitled to be paid by the Council at a rate decided by the Minister.(5) The rate must be decided by the Minister in consultation with the Council.
One or more Committees may conduct more than one assessment at the same time.
Division 13 Impaired Registrants Panels [NSW]
173 Establishment of Impaired Registrants Panels [NSW]
(1) There are to be Impaired Registrants Panels established for the purposes of this Law.(2) A Panel has and may exercise the jurisdiction and functions conferred or imposed on it by or under this Law or any other Act.
173A Council to establish Panel when required [NSW]
(1) If a Council decides to refer a matter to an Impaired Registrants Panel, it must appoint 2 or 3 persons to sit as the Panel for the purpose of dealing with the matter.(2) A panel must include—(a) at least one person who is registered in the same health profession as the registered health practitioner or student who is the subject of the Panel’s proceedings; and(b) at least one medical practitioner.(3) If the health profession has divisions, the member appointed under subsection (2)(a) must be registered in the same division of the health profession as the registered health practitioner or student the subject of the complaint.(4) A person may be appointed to sit on a Panel whether or not the person is a member of the Council, but not if the person has previously dealt with the particular matter before the Panel in the person’s capacity as a member of the Council.(5) A member of a Panel, while sitting on the Panel, is entitled to be paid at the rate decided by the Minister in consultation with the Council.
(1) If an Impaired Registrants Panel consists of 2 members—(a) a decision supported by both members of the Panel is the decision of the Panel; and(b) if the members of the Panel disagree as to any matter dealt with by the Panel, the Panel’s report to the Council must include details of the disagreement and the reasons for it.(2) If a Panel consists of 3 members—(a) a decision supported by a majority of the members of the Panel is the decision of the Panel; and(b) the Panel’s report to the Council must include any minority decision.
Division 14 Performance Review Panels and assessors [NSW]
174 Establishment of Performance Review Panels [NSW]
(1) There are to be Performance Review Panels established for the purposes of this Law.(2) A Panel has and may exercise the jurisdiction and functions conferred or imposed on it by or under this Law or any other Act.
174A Membership of Performance Review Panels [NSW]
(1) If a Council decides to require a Performance Review Panel to conduct a performance review of the professional performance of a registered health practitioner, the Council must appoint 3 persons to sit as the Panel for the purpose of that performance review.(2) Of those 3 persons—(a) 2 are to be registered health practitioners registered in the same health profession as the health practitioner to whom the proceedings relate; and(b) one is to be a person who—(i) is not a registered health practitioner or student in the same health profession as the health practitioner to whom the proceedings relate; and(ii) has not at any time been registered as a health practitioner or student in that health profession under this Law or a corresponding prior Act.(3) If the health profession has divisions, at least one and, if practicable, both, of the members appointed under subsection (2)(a) must be registered in the same division of the health profession as the health practitioner the subject of the complaint.(4) One of the members of the Panel must be appointed by the Council as Chairperson of the Panel.(5) A person may be appointed to sit on a Panel whether or not the person is a member of the Council, but not if the person has previously dealt with the particular matter before the Panel in the person’s capacity as a member of the Council.(6) A member of a Panel, while sitting on the Panel, is entitled to be paid by the Council at a rate decided by the Minister in consultation with the Council.
A decision supported by a majority of members of a Performance Review Panel is the decision of the Panel.
174C Certain powers may be exercised by Chairperson [NSW]
(1) The Chairperson of a Performance Review Panel may exercise the following functions of a Panel—(a) the power to terminate a performance review;(b) the power to hand down a decision of the Panel on a performance review.(2) A power of a Performance Review Panel that is exercised by the Chairperson of the Panel under this Law is taken to have been exercised by the Panel.
(1) A Council may appoint suitably qualified persons to be assessors for the purposes of this Law.(2) Assessors are to be appointed on the terms and conditions decided by the Council.(3) An assessor has the functions conferred on an assessor by this Law and any other functions, in connection with Division 5, conferred on the assessor by the Council.
175 Appellable decisions [NSW]
(1) A person who is the subject of any of the following decisions (an appellable decision) may appeal against the decision to the appropriate responsible tribunal for the appellable decision—(a) a decision by a National Board to refuse to register the person;(b) a decision by a National Board to refuse to endorse the person’s registration;(c) a decision by a National Board to refuse to renew the person’s registration;(d) a decision by a National Board to refuse to renew the endorsement of the person’s registration;(e) a decision by a National Board to impose or change a condition on a person’s registration or the endorsement of the person’s registration, other than—(i) a condition relating to the person’s qualification for general registration in the health profession; and(ii) a condition imposed by section 112(3)(a);(f) a decision by a National Board to refuse to change or remove a condition imposed on the person’s registration or the endorsement of the person’s registration;(g) a decision by a National Board to refuse to change or revoke an undertaking given by the person to the Board.(2) For the purposes of subsection (1), the appropriate responsible tribunal for an appellable decision is—(a) for a decision in relation to a registered health practitioner, the responsible tribunal for the participating jurisdiction in which the practitioner’s principal place of practice is located; or(b) for a decision in relation to a student, the responsible tribunal for the participating jurisdiction in which the student is undertaking the approved program of study or clinical training; or(c) for a decision in relation to another person—(i) the responsible tribunal for the participating jurisdiction in which the person lives; or(ii) if the person does not live in a participating jurisdiction, the responsible tribunal for the participating jurisdiction nominated by the National Board that made the appellable decision and specified in the notice given to the person of the appellable decision.Note. This section is a substituted New South Wales provision.
175A Parties to the proceedings [NSW]
The parties to proceedings relating to an appellable decision being heard by a responsible tribunal are—(a) the person who is the subject of the appellable decision; and(b) the National Board that made the appellable decision.Note. This section is a substituted New South Wales provision.
The responsible tribunal may make any order about costs it considers appropriate for the proceedings.Note. This section is a Health Practitioner Regulation National Law provision (see section 201 of the National Law).
(1) After hearing the matter, the responsible tribunal may—(a) confirm the appellable decision; or(b) amend the appellable decision; or(c) substitute another decision for the appellable decision.(2) In substituting another decision for the appellable decision, the responsible tribunal has the same powers as the entity that made the appellable decision.Note. This section is a Health Practitioner Regulation National Law provision (see section 202 of the National Law).Note. Section 203 of the Health Practitioner Regulation National Law is not applicable to New South Wales.
Division 14B Miscellaneous [NSW]
176 Notice from adjudication body [NSW]
(1) If an adjudication body, other than a court, makes a decision in relation to a health practitioner or student registered in a health profession, it must give written notice of the decision to the National Board for the profession.(2) For the purposes of subsection (1), in this jurisdiction a decision by an adjudication body is any of the following—(a) a decision by the adjudication body to impose or agree to conditions on a registered health practitioner’s or student’s registration;(b) a decision by the adjudication body to suspend a registered health practitioner’s or student’s registration;(c) a decision by the adjudication body to cancel a registered health practitioner’s or student’s registration.Note. This subsection is an additional New South Wales provision.(3) The notice must state—(a) the decision made by the adjudication body; and(b) the reasons for the decision; and(c) the date the decision takes effect; and(d) any action the National Board must take to give effect to the decision.
176A Implementation of decisions
(1) A National Board must give effect to a decision of an adjudication body unless the decision is stayed on appeal.(2) Without limiting subsection (1), the National Board must, if the notice given to the Board states that a health practitioner’s or student’s registration is cancelled, remove the practitioner’s or student’s name from the appropriate register kept by the Board.Note. This section is a Health Practitioner Regulation National Law provision (see section 205 of the National Law).
176B National Board to give notice to registered health practitioner’s employer
(1) This section applies if—(a) a National Board—(i) decides to take health, conduct or performance action against a registered health practitioner; or(ii) receives notice from an adjudication body that the adjudication body has decided to take health, conduct or performance action against a registered health practitioner; or(iii) receives notice from a co-regulatory authority that an adjudication body in the co-regulatory jurisdiction has decided to take health, conduct or performance action against a registered health practitioner; and(b) the National Board has been advised by the registered health practitioner that the practitioner is employed by another entity.Note. Under section 132, a National Board may ask a registered health practitioner to give the Board information about whether or not the practitioner is employed by another entity and, if so, for the employer’s details.(2) The National Board must, as soon as practicable after making the decision or receiving the notice, give written notice of the decision to take health, conduct or performance action against the registered health practitioner to the practitioner’s employer.Note. This section is a Health Practitioner Regulation National Law provision (see section 206 of the National Law).
176C Adjudication body to consider impact of decision on third parties [NSW]
(1) If an adjudication body proposes to make a decision that, in the body’s opinion, will impose an appreciable burden on an identifiable third party in connection with a registered health practitioner’s practice or clinical training undertaken by a student, the body—(a) must give the third party an opportunity to make submission to the body with respect to the decision; and(b) must take the submission into account before giving the direction or making the order.(2) If an adjudication body makes a decision that will, in the body’s opinion, impose an appreciable burden on an identifiable third party in connection with a registered health practitioner’s practice or clinical training undertaken by a student, the body must give the third party notice of the decision as soon as practicable after it is made.(3) An example of a decision that may impose an appreciable burden on an identifiable third party in connection with a registered health practitioner’s practice is a decision that has the effect of requiring the practice of a registered health practitioner to be supervised by an identified third party.(4) In this section—adjudication body means—
(a) a Committee;(b) a Council;(c) a Panel;(d) a Tribunal.third party means a health service provider other than the registered health practitioner to whom an inquiry relates, but does not include a person or body exercising functions conferred by this Law or the Health Care Complaints Act 1993.
Note. This section is a New South Wales provision.
If a person’s registration as a health practitioner or student is suspended under this Law the person is taken during the period of suspension not to be registered under this Law, other than for the purposes of this Part.Note. This section is a Health Practitioner Regulation National Law provision (see section 207 of the National Law).
176E Protection from liability for certain publications [NSW]
(1) A publication in good faith of a written statement of a decision made by a Council, a Committee, a Panel or a Tribunal does not subject a protected person to any liability (including liability in defamation).(2) In this section—protected person means—
(a) a Council, a Committee, a Panel or a Tribunal or a member of a Council, a Committee, a Panel or a Tribunal; or(b) the proprietor, editor or publisher of a newspaper; or(c) the proprietor or broadcaster of a radio or television station or the producer of a radio or television show; or(d) an Internet service provider or Internet content host; or(e) a member of staff of, or a person acting at the direction of, a person or entity referred to in this definition; or(f) a person, or a person belonging to a class of persons, prescribed by the NSW regulations for the purposes of this section.Note. This section is a New South Wales provision.
176F Confidentiality of protected reports
(1) A person must not, directly or indirectly—(a) disclose a protected report to another person that the person has obtained in the exercise of the person’s functions under this Law; or(b) make a record of, or disclose to another person, information contained in a protected report that the person has obtained in the exercise of the person’s functions under this LawMaximum penalty: 50 penalty units.
(2) Subsection (1) does not apply to the disclosure by a person of a protected report or information contained in a protected report—(a) for the purpose of exercising functions under this Law; or(b) to the Commission.(3) A protected report may not be admitted or used in civil proceedings before a court other than with the consent of—(a) the person giving the report; and(b) the person the subject of the report.(4) A person may not be compelled to produce a protected report, or to give evidence in relation to the report or its contents, in civil proceedings before a court.