Doctors Must Be Given Every Opportunity to Attend a Disciplinary Hearing

The Health Care Complaints Commission (HCCC) has responsibility for investigating complaints made about health care professionals such as doctors, nurses, physiotherapists and psychologists.

If the HCCC finds a practitioner unfit to practise by reason of, for example, engaging in professional misconduct, the matter will then be referred to the NSW Civil and Administrative Tribunal (Occupational Division) for disciplinary orders to be made.

If the findings of the HCCC investigation are proven, the NCAT will then make appropriate order such as suspending, deregistering, censuring, prohibiting re-registration, or requiring supervision.

These orders are designed to protect the general public and the reputation of the profession, rather than to punish the practitioner.

Procedural fairness

The courts have found that, before disciplinary action can be taken, the practitioner must be afforded the opportunity to give make submissions, provide materials and give evidence at a hearing.

In a recent case, a general practitioner by the name of Dr Ratna Ghosh neglected to participate in proceedings brought against her in the NCAT, in so far as she did not attend a directions hearing to set down a timetable for the service of documents.

The NCAT hearing

This led to the NCAT relying on the provisions contained in section 50 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) to dispense with a hearing and proceeding on the papers only.

The Tribunal then made the following orders:

• That the respondent’s (Dr Ghosh’s) registration would have been cancelled if she were still registered,
• That the respondent is disqualified from being registered as a medical practitioner for a period of 18 months, and
• That the orders are stayed (put on hold) for a period of 28 days from the date of publication of the decision to allow any application to be made by the respondent to show cause (give reasons) as to why the orders should not be made.

The appeal

Dr Ghosh appealed this decision to the New South Wales Court of Appeal.

The Court of Appeal ultimately found that the requirement under sections 165l and 165J of the Health Practitioner Regulation National Law (2009)(NSW) (‘National Law’) for a health care professional to be given ‘sufficient notice of… [an] inquiry’ overrides the power of the NCAT to dispense with a hearing.

The court determined that, in the case at hand, the NCAT failed to give Dr Ghosh sufficient notice of the date of the hearing, following her failure to attend the directions hearing.

The court further found that the Tribunal’s making of a ‘show cause’ order could not, in any way, rectify the failure.

Dr Ghosh’s appeal was therefore allowed and she was provided with an opportunity to attend a disciplinary hearing to argue her case.