Today’s correspondent has an interesting question on the role of Tribunals in professional discipline. They say:
… three recent events have left me quizzical, regarding deregistration of paramedics. I was of the understanding that the Paramedic Registration Board (under AHPRA) was solely responsible for this important function, but it has been reported in three recent cases that this function was a result of a hearing at the Civil and Administration Tribunal in the relevant State. The three cases are McAlpine in NSW (your blog August 22 2022), Galloway QLD (your blog May 25 2022) and the recent case of Robert Wayne Bevan (reported by the ABC September 27th 2022). Or is the involvement of the various State Tribunals a result of appeals by the paramedics concerned, and such detail left out by reporters??
The Health Practitioner Regulation National Law is set out in a schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) and then adopted, with modification and local definitions, in each state and territory. In answering this question I’ll refer to the national law as it appears in the Schedule.
The law provides for a ‘responsible Tribunal’ that is
a tribunal or court that—
(a) is declared, by the Act applying this Law in a participating jurisdiction, to be the responsible tribunal for that jurisdiction for the purposes of this Law as applied in that jurisdiction, …
That is, it is up to each jurisdiction to nominate a Tribunal or court that is to exercise the functions of a Tribunal for the purposes of the National Law. In most jurisdictions, and certainly NSW, Queensland and South Australia, that is the state’s Civil and Administrative Tribunal (NCAT, QCAT and SACAT respectively).
Where a complaint is made to the Paramedicine Board the Board must make an initial determination. The Board may take immediate action to suspend a practitioner’s registration or impose conditions on their registration if, in the opinion of the Board, ‘it is necessary to take immediate action to protect public health or safety’ (s 156).
The Board may conduct an investigation into a complaint (s 160) and/or it may require a practitioner to undergo a health or performance assessment (ss 169 and 170).
Dependent on the Board’s assessment of the practitioner’s conduct, the Board may (s 178):
- Caution the practitioner;
- Accept an undertaking from the practitioner;
- Impose conditions on the practitioner’s registration; or
- Refer the matter to another entity – eg the police or the Health Ombudsman (in Queensland) or the Health Care Complaints Commission (in NSW).
A Performance and Professional Standards Panel
Where the Board is of the view that the practitioners’ conduct may amount to unsatisfactory professional conduct, they may refer the practitioner to a Performance and Professional Standards Panel. The panel must have at least three members, at least of two of whom must be registered in the same health profession – ie in our context, at least wo must be paramedics; and at least one must be a community representative (s 182). ‘A panel is required to observe the principles of natural justice but is not bound by the rules of evidence’ (s 185). A practitioner may be assisted by a legal practitioner but may only be represented by a legal practitioner with the permission of the panel (s 186). The panel may decide (s 191):
(a) the practitioner has no case to answer and no further action is to be taken in relation to the matter; or
(b) one or more of the following—
(i) the practitioner has behaved in a way that constitutes unsatisfactory professional performance;
(ii) the practitioner has behaved in a way that constitutes unprofessional conduct;
(iii) the practitioner has an impairment;
(iv) the matter must be referred to the responsible tribunal;
(v) the matter must be referred to another entity, including, for example, a health complaints entity, for investigation or other action.
The panel may impose conditions on the practitioner’s registration and may caution or reprimand the practitioner (s 191). A health panel (ie a panel inquiry into the practitioner’s health) but not a ‘performance and professional standards panel’ may suspend the practitioner’s registration.
A panel hearing is not a public hearing (s 189).
A panel must stop hearing a matter and refer it back to the Board for referral to a Tribunal if the practitioner requests the panel to take that action or the panel ‘believes the evidence demonstrates the practitioner may have behaved in a way that constitutes professional misconduct’ or that the practitioner’s registration was improperly obtained (s 190).
Equally a national board must refer a matter to a Tribunal if the Board forms the view that the practitioner may be guilty of ‘professional misconduct’ or obtained their registration improperly (s 193).
A Tribunal may (s 196(1)) determine that the practitioner’s conduct amounts to:
- unsatisfactory professional performance;
- unprofessional conduct; or
- professional misconduct;
The Tribunal may also determine that the practitioner has an impairment or that their registration was improperly obtained. The Tribunal may (s 196(2)):
(a) caution or reprimand the practitioner;
(b) impose a condition on the practitioner’s registration…
(c) require the practitioner to pay a fine of not more than $30,000 to the National Board that registers the practitioner;
(d) suspend the practitioner’s registration for a specified period;
(e) cancel the practitioner’s registration.
The Tribunal also sits as the appeal body from various decisions of the Board (s 199).
There are state differences in the exact process to be applied, particularly in the co-regulatory jurisdictions. A co-regulatory jurisdiction is (AHPRA, Glossary, definition of a co-regulatory jurisdiction):
A jurisdiction which is not participating in the health, performance and conduct process provided by the National Law, but is involved in other parts of the National Scheme. New South Wales is a co-regulatory jurisdiction, so the health professionals councils work with the Health Care Complaints Commission to assess and manage concerns about practitioners’ conduct, health and performance.
The NSW Paramedicine Council says:
… New South Wales operates a state specific complaints management process in which the regulatory bodies will be the Paramedicine Council of New South Wales and the Health Care Complaints Commission (HCCC),
(See also https://www.paramedicinecouncil.nsw.gov.au/).
Queensland is also a co-regulatory jurisdiction (Kim Forrester ‘A new beginning for health complaints in Queensland: the Health Ombudsman Act 2013 (QLD)’ (2013) 21(2) J Law Med 273-7).
The difference in process does not however change that fact that where a practitioner’s conduct warrants, or may warrant, the ultimate sanction of de-registration, it is the relevant Tribunal, and only the relevant Tribunal, that can make that order.
The result is that is not the Paramedicine Board that is responsible for the decision to de-register a paramedic (or other health professional). The Board is more akin to the police and the DPP (though in some states that is passed onto another agency such as the Health Ombudsman or the Health Care Complaints Commission). Where the conduct is sufficiently serious as to potentially warrant de-registration it is referred to Tribunal.
These Tribunals, although they do not have the status of courts, bring a high degree of formality and procedure to bear to ensure that the allegations are proved to the satisfaction of an independent arbiter, and that the practitioner can be represented by a legal practitioner.
This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.