HEALTH PRACTITIONER REGULATION NATIONAL LAW (NSW) - SCHEDULE 5D
HEALTH PRACTITIONER REGULATION NATIONAL LAW (NSW) - SCHEDULE 5D
SCHEDULE 5D – Proceedings before Professional Standards Committees or the Tribunal [NSW[#93]
Note : This Schedule is an additional New South Wales provision.
1 Definition [NSW[#93]
(1) In this Schedule--
"Committee" means a Professional Standards Committee.
(2) A reference in this Schedule (however expressed) to proceedings before the Tribunal is a reference to proceedings before the Tribunal under this Law.
2 Proceedings generally [NSW[#93]
In proceedings before it, a Committee or the Tribunal is not bound to observe the rules of law governing the admission of evidence, but may inform itself of any matter in the way it thinks fit.
3 Power to summon witnesses and take evidence [NSW[#93]
(1) The Chairperson or Deputy Chairperson of a Committee may summon a person to appear in proceedings before the Committee to give evidence and to produce the documents (if any) referred to in the summons.Note : See sections 46, 47 and 48 of the Civil and Administrative Tribunal Act 2013 concerning the powers of the Tribunal with respect to witnesses and evidence.
(2) The person presiding at the proceedings may require a person appearing in the proceedings to produce a document.
(3) A Committee may, in proceedings before it, take evidence on oath or affirmation and, for that purpose a member of the Committee--(a) may require a person appearing in the proceedings to give evidence either to take an oath or to make an affirmation in a form approved by the person presiding; and(b) may administer an oath to or take an affirmation from a person so appearing in the proceedings.
(4) A person served with a summons to appear in proceedings before a Committee and to give evidence must not, without reasonable excuse--(a) fail to attend as required by the summons; or(b) fail to attend from day to day unless excused, or released from further attendance, by a member of the Committee.
(5) A person appearing in proceedings to give evidence must not, without reasonable excuse--(a) when required to be sworn or affirm--fail to comply with the requirement; or(b) fail to answer a question that the person is required to answer by the person presiding; or(c) fail to produce a document that the person is required to produce by this clause.
: Maximum penalty--20 penalty units.
4 Power to obtain documents [NSW[#93]
(1) A member of a Committee or the Tribunal may, by notice in writing served on a person, require the person--(a) to attend, at a time and place specified in the notice, before a person specified in the notice, being a member of the Committee or the Tribunal or a person authorised by the Committee or the Tribunal in that behalf; and(b) to produce, at that time and place, to the person so specified a document specified in the notice.
(2) A person who fails, without reasonable excuse, to comply with a notice served on the person under this clause is guilty of an offence.: Maximum penalty--20 penalty units.
(3) The power conferred by this clause is in addition to any other power conferred on the Tribunal by the Civil and Administrative Tribunal Act 2013 with respect to the provision of documents.
5 Evidence of other proceedings [NSW[#93]
(1) A Committee or the Tribunal may receive and admit on production any of the following, as evidence in any proceedings--(a) the judgment and findings of a court (whether civil or criminal and whether or not of this jurisdiction);(b) the verdict or findings of a jury of a court (whether civil or criminal and whether or not of this jurisdiction);(c) the judgment and findings of a tribunal (whether or not of this jurisdiction);(d) a finding, decision or determination of a Professional Standards Committee established under this Law or a corresponding prior Act;(e) a decision of a performance and professional standards panel established under the Health Practitioner Regulation National Law;(f) a certificate of the conviction of or the making of a criminal finding in respect of any person;(g) a transcript of the depositions or of shorthand notes, duly certified by the Registrar or clerk of the court or tribunal as correct, of the evidence of witnesses taken in a court or tribunal referred to in paragraphs (a)-(c);where the Committee or the Tribunal is of the opinion that the judgment, findings, verdict, certificate, decision, determination or evidence is relevant to the proceedings.
(1A) A Committee or the Tribunal may receive and admit on production, as evidence in any proceedings, a thing seized under the authority of a search warrant where the Committee or Tribunal is of the opinion that the thing seized is relevant to the proceedings.
(2) If the Committee or the Tribunal is of the opinion that evidence admitted under subclause (1) or (1A) is capable of establishing that a registered health practitioner has engaged in conduct that is sufficiently similar to the conduct alleged against the practitioner in the proceedings, it may rely on the evidence in--(a) making a finding that a registered health practitioner is guilty of unsatisfactory professional conduct or professional misconduct; or(b) exercising any of its powers under Subdivision 3 or 6 of Division 3 of Part 8.
(3) The power conferred by this clause is in addition to any other power conferred on the Tribunal by the Civil and Administrative Tribunal Act 2013 with respect to the use of evidence.
6 Additional complaints [NSW[#93]
(1) A Committee or the Tribunal may in proceedings before it deal with one or more complaints about a registered health practitioner or student.
(2) If, during the proceedings, it appears to the Committee or the Tribunal that, having regard to any matters that have arisen, another complaint could have been made against the practitioner or student concerned--(a) whether instead of or in addition to the complaint which was made; and(b) whether or not by the same complainant;the Committee or the Tribunal may take that other complaint to have been referred to it and may deal with it in the same proceedings.
(3) In proceedings in which a Committee or the Tribunal is dealing with more than one complaint about a registered health practitioner or student, the Committee or the Tribunal may have regard to all the evidence before it (whether the evidence arose in relation to a complaint in respect of which the Committee or the Tribunal is making a finding or any other complaint or complaints in the proceedings) when making any of the following findings--(a) a finding on a question of fact in relation to the conduct of a registered health practitioner or student;(b) a finding that a registered health practitioner is guilty of unsatisfactory professional conduct or professional misconduct.
(4) If another complaint is taken to have been referred to a Committee or the Tribunal under subclause (2), the complaint may be dealt with after such an adjournment (if any) as is, in the Committee's or Tribunal's opinion, just and equitable in the circumstances.
7 Release of information [NSW[#93]
(1) The person presiding in proceedings before a Committee or the Tribunal may, if the person presiding thinks it appropriate in the particular circumstances of the case (and whether or not on the request of a complainant, the registered health practitioner or student concerned or any other person)--(a) direct that the name of any witness is not to be disclosed in the proceedings; or(b) direct that all or any of the following matters are not to be published--(i) the name and address of any witness;(ii) the name and address of a complainant;(iii) the name and address of a registered health practitioner or student;(iv) any specified evidence;(v) the subject-matter of a complaint.
(2) A direction may be amended or revoked at any time by the person presiding.
(3) A direction may be given before or during proceedings, but must not be given before the proceedings unless notice is given of the time and place appointed by the person presiding for consideration of the matter to--(a) a person who requested the direction; and(b) the complainant or the registered health practitioner or student concerned, as appropriate; and(c) another person the person presiding thinks fit.
(4) For the purposes of this clause, a reference to the name of any person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
(5) A person who contravenes a direction given under this clause is guilty of an offence.: Maximum penalty--(a) in the case of a corporation, 150 penalty units; or(b) in any other case, 20 penalty units.
8 Authentication of documents by Committee [NSW[#93]
Every document requiring authentication by a Committee may be sufficiently authenticated if signed by the Chairperson of that Committee or by a member of that Committee.
Note : See section 87 (Authentication of documents) of the Civil and Administrative Tribunal Act 2013 in relation to the Tribunal.
9 Nominal complainant [NSW[#93]
(1) In any proceedings before a Committee or the Tribunal, a person appointed by the Commission--(a) may act as nominal complainant in place of the actual complainant; and(b) when so acting, is, for the purposes of this Law and the NSW regulations, to be taken to be the person who made the complaint.
(2) A reference in this Law to a complainant includes a reference to a nominal complainant.
10 Intervention by Secretary and Commission [NSW[#93]
Without limiting the operation of clause 9, the Secretary personally (or a person employed in the Ministry of Health appointed by the Secretary) or a person appointed by the Commission may intervene, and has a right to be heard, in any proceedings before a Committee or the Tribunal.
11 Expedition of inquiries and appeals [NSW[#93]
(1) It is the duty of a Committee or the Tribunal to hear inquiries and appeals under this Law and to determine those inquiries and appeals expeditiously.
(2) Without limiting subclause (1)--(a) an inquiry or appeal related to action taken by the Council under section 150 must be listed for hearing by a Committee or the Tribunal as soon as practicable; and(b) a Committee or the Tribunal may postpone or adjourn proceedings before it as it thinks fit.
12 Certain complaints may not be heard [NSW[#93]
(1) A Committee or the Tribunal may decide not to conduct an inquiry, or at any time to terminate an inquiry or appeal, if--(a) any of the following circumstances apply--(i) a complainant fails to comply with a requirement made of the complainant by the Committee or the Tribunal;(ii) the person about whom the complaint is made ceases to be a registered health practitioner or student;(iii) the complaint before the Committee or the Tribunal is withdrawn; and(b) in the opinion of the Committee or the Tribunal it is not in the public interest for the inquiry or appeal to continue.
(2) A Committee or the Tribunal must not conduct or continue any inquiry or any appeal if the registered health practitioner or student concerned dies.
(3) The power conferred on a Committee or the Tribunal by this clause may be exercised by the Chairperson of the Committee or the member of the Tribunal presiding and, if exercised by the Chairperson or member, is taken to have been exercised by the Committee or the Tribunal.
13 Tribunal may award costs [NSW[#93]
(1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal.
(2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect.
(3) The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the Registrar of the District Court must enter judgment for the amount unpaid together with any fees paid for filing the certificate.
(3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014 ) or on any other basis.
(4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013 .