Australia, July 24 -- New South Wales Land and Environment Court issued text of the following judgement on June 24:

1. In 1978, the respondent was registered as a medical practitioner and in 1985 commenced practice as a specialist physician. On 18 April 2016, the applicant filed a complaint in the Tribunal relating to allegations involving several patients (the Complaint). The allegations contained in the Complaint are substantially the same as those which were contained in criminal charges filed against the respondent some weeks earlier. As expanded upon below, the respondent was acquitted of the charges and after due consideration of the matter, the applicant withdrew the Complaint and invites the Tribunal to terminate the proceedings pursuant to cl 12 of Sch 5D to the Health Practitioner Regulation National Law (NSW) (the National Law) on the grounds that the Tribunal would be of the opinion that it is not in the public interest for the inquiry to continue.

2. For the reasons set out below, the Tribunal is indeed of the opinion that it is not in the public interest for the inquiry to continue; and the inquiry is terminated.

Constitution of the Tribunal

3. Clause 12 of Sch 5D to the National Law is the relevant provision for terminating a disciplinary inquiry on the withdrawal of an application: Health Care Complaints Commission v Murray [2024] NSWCATOD 178 (Murray), Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53.

4. Clause 12 of Sch 5D to the National Law relevantly provides:

12 Certain complaints may not be heard [NSW]

(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(iii) the complaint before the Committee or the Tribunal is withdrawn; and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.

5. The power conferred on the Tribunal in cl 12, may be exercised by the member of the Tribunal "presiding" and, if so exercised, is taken to have been exercised by the Tribunal: cl 12(3), Sch 5D to the National Law.

6. As there is, yet, no panel constituted to hear and determine the inquiry, the reference to "presider" in cl 12 of Sch 5D, requires further reflection.

7. In conducting an inquiry, s 165B(2)(a) of the National Law provides for the constitution of the Tribunal:

165B Constitution of Tribunal for complaints, applications and appeals [NSW] ...

(2) Except as provided by subsections (4), (5) and (5A), the Tribunal, when conducting an inquiry or hearing an appeal under this Law, is to be constituted by-

(a) 1 Division member who is an Australian lawyer of at least 7 years' standing or, in the case of medical practitioner proceedings, 1 Division member who is a senior judicial officer; and

(b) 2 health practitioners selected for appointment by the Council as occasional members under subsection (1) (b) who are registered in the same health profession as the health practitioner or student the subject of the inquiry or appeal; and

(c) 1 lay person (that is, a person who is not registered in the health profession) selected for appointment by the Council as an occasional member under subsection (1) (b) from among a panel of lay persons for the time being nominated by the Minister.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19786b2de50f676c313407cc)

Disclaimer: Curated by HT Syndication.