Health Practitioner Regulation National Law (NSW) No 86a
Current version for 1 January 2014 to date (accessed 24 November 2014 at 13:36)
Part 8Division 3Subdivision 5

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.

148B   General procedure [NSW]

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.

148C   Conduct of meeting [NSW]

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 Tribunal.
(4)  The Tribunal 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 Tribunal 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 Tribunal 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.
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