What is a section 150 Health Practitioner Regulation National Law Hearing?

 

A section 150 Health Practitioner Regulation National Law Hearing is an urgent hearing before the Medical Council which allows the Medical Council to restrict or suspend a practitioner’s registration.

This can obviously have disastrous effects on a medical practitioner whom will no longer be able to practice should their registration be suspended.

Unlike a traditional court, the Medical Council can consider evidence that would otherwise not be admissible in a court and does not have to make findings of fact.

The Medical Council can restrict or suspend a practitioner’s registration if it is satisfied that it is appropriate for the protection of the health or safety of any person or if satisfied that it is otherwise in the public interest.

1. The ‘public interest’ is not statutorily defined but a common example of the public consideration is as follows:

A consideration of the public interest will always include the need for patients to have confidence in the competence of medical practitioners and that medical practitioners will exhibit traits consistent with the honourable practice of an honourable profession. Integrity, trustworthiness and high moral and ethical values are an integral part of the practice of medicine, as is compliance with regulatory requirements and codes of practice established by those responsible for the administration of the medical profession. The public must have confidence that medical practitioners who treat them exhibit these traits.[1]

[1] Crickitt v Medical Council (NSW) (No 2) [2015] NSWCATOD 115.

 

1. Public interest considerations have previously been discussed as:

• Public confidence in health professions;[1]
• The standing and reputation of an honourable profession;[2]
• The public confidence in health regulation;[3]
• The public’s assurance that practitioners are fit to practice;[4]
• The need for practitioner’s to take appropriate responsibility for their actions, seeking assistance from the proper available sources and acting on advice received rather than relying on the “strange” or “unusual” advice or direction from non-trained persons;[5]
• The need for practitioners to observe lawful requirements imposed upon them concerning the practice of their profession;[6]
• The interest in having appropriately skilled practitioners available to meet the health needs of the public;[7]
• The goal of meeting the health needs of the practitioner’s patients;[8]
• The goal of meeting the health needs of rural and remote communities;[9]
• The goal of meeting the health needs of vulnerable patient groups;[10]
• The need to communicate to the health professions that some behaviours are unacceptable;[11]
• The need to assure the public that some behaviours are unacceptable;[12]
• The presumption of innocence and privilege against self-incrimination;[13]
• The need for timely decision-making;[14]
• The avoidance of wasting the effort and expense of training health practitioners;[15]
• The ability of practitioners to continue to practice and earn an income.[16]

[1] Crickitt v Medical Council (NSW) (No 2) [2015] NSWCATOD 115; Cassim v Medical Board of Australia [2021] VCAT 595 [7],[46]; Joubert v Medical Board of Australia [2021] VCAT 915 [98]; Kok v Medical Board of Australia [2020] VCAT 405 [94].

[2] Crickitt v Medical Council (NSW) (No 2) [2015] NSWCATOD 115 [56]; Khan v Medical Council (NSW) [2016] NSWCATOD 88 [162]; Karimi v Medical Council of New South Wales [2017] NSWCATOD 180 [123].

[3] Farshchi v Chiropractic Board of Australia (Review and Regulation) [2018] VCAT 1618 [71]-[75]; Pharmacy Council of NSW v Ibrahim [2020] NSWSC 708 [32]; Sevdalis v Medical Board of Australia [2020] VCAT 913 [123]. Vo v Medical Board of Australia [2020] VCAT 1072 [163],[187]; LCK v Health Ombudsman [2020] QCAT 316; Appanna v Medical Board of Australia [2021] VCAT 277 [57]-[59]; Joubert v Medical Board of Australia [2021] VCAT 915 [98]; Cheema v Medical Board of Australia [2020] SACAT 40 [66]-[67].

[4] Segal v Medical Council of New South Wales [2020] NSWCATOD 113.

[5] Karimi v Medical Council of New South Wales [2017] NSWCATOD 180 [162].

[6] Singh v Medical Council (NSW) (No 2) [2015] NSWCATOD 28; Hampshire v Medical Council of NSW [2017] NSWCATOD 140 [55].

[7] Segal v Medical Council of New South Wales [2020] NSWCATOD 113 [153].

[8] Coutinho v Dental Council of New South Wales [2018] NSWCATOD 98 [50]; Steel v Medical Council of New Souith Wales [2020] NSWCATOD 77 [111],[113].

[9] Coutinho v Dental Council of New South Wales [2018] NSWCATOD 98 [50]; Farshchi v Chiropractic Board of Australia (Review and Regulation) [2018] VCAT 1618 [71]-[75].

[10] Farshchi v Chiropractic Board of Australia (Review and Regulation) [2018] VCAT 1618 [101];

[11] Health Ombudsman v Harirchian [2021] QCA 141 [12].

[12] Health Ombudsman v Harirchian [2021] QCA 141.

[13] CJE v Medical Board of Australia [2019] VCAT 178 [199]; Hyland v Medical Council of New South Wales [2021] NSWCATOD 199 [25]-[26].

[14] Farshchi v Chiropractic Board of Australia (Review and Regulation) [2018] VCAT 1618 [71]-[75]; Sami v Medical Board of Australia [2021] VCAT 447 [133].

[15] LCK v Health Ombudsman [2020] QCAT 316.

[16] Farshchi v Chiropractic Board of Australia (Review and Regulation) [2018] VCAT 1618 [71]-[75]; CJE v Medical Board of Australia [2019] VCAT 178 [199]; Liu v Chinese Medicine Council of NSW [2019] NSWCATOD 13 [37]; Kok v Medical Board of Australia [2020] VCAT 405 [38].

 

1. Principles of the power contained in section 150[1] include:[2]

Protective jurisdiction The jurisdiction being exercised is di­rected to the immediate action that may need to be taken in order to protect the health or safety of any person or persons or the public interest. (ss 3A and 150 of the National Law, Hanna at [17] and Crickitt at [47])

Consequences of suspension The exercise of the power to suspend can be described as ‘draconian’ and will have grave consequences for a practitioner, affecting not only the ability to earn a livelihood, but also the continuing ability to use his or her professional skills. Nevertheless, this is but a consequence of any appropriate exercise of discretion, and not a determining factor. (Crickitt at [56]; see also X v NSW Medical Board (1993) 32 ALD 330 and Lindsay v NSW Medical Board [2008] NSWSC 40 at [80], which considered s 66 of Medical Practice Act 1992 (NSW), being the predecessor to s 150 of the National Law)

No need for a detailed enquiry The existence of the power, and the fact that it may be exercised without any formal complaint having been made against the practitioner, and without any disciplinary proceedings having been commenced, is indicative that the Tribunal need not embark upon a detailed enquiry, and may base its reasons on material which would not conventionally be considered as evidence in a strict sense as would be admissible in a court. (Crickitt at [56]; see also Lindsay at [76])

Not required to make any conclusive findings Because the circumstances in which the power under s 150 is to be exercised include that there may be a continuing dispute as to precisely what occurred and why and that investigations into complaints concerning the practitioner by bodies such as the HCCC may not have been completed or even commenced, the Tribunal is not required to make conclusive findings of fact based on the material before it. (s 150 of the National Law and Hanna at [19])

Pre-conditions on power to suspend The Tribunal must assess whether ‘it is appropriate for the protection of the health and safety of any person or persons’ or ‘is otherwise in the public interest’ to make such orders as are permitted by s 159C. The Tribunal’s task is in essence to consider whether, on the material before it, allowing the practitioner to practice, or to practice with certain conditions, involves an unacceptable risk to the health and safety of the public (or particular members of the public) or otherwise involves a risk not in the public interest. (ss 150, 159 and 159C of the National Law and Hanna at [20])

• Scope of ‘protection of the health and safety of person or persons’ The ‘protection of the health and safety of any person or persons’ does not require there be actual harm suffered by any person. Because s 150 is concerned with protection, it is sufficient if it can be demonstrated that there is a potential for harm. This approach is fortified by the alternative test of a consideration of the public interest.
  It would be in the public interest to prevent harm being suffered by a person or persons if it could be predicated that this may occur. (Section 150 of the National Law and Crickitt at [48]) 

• Scope of ‘public interest’ The ‘public interest’ consider­ation will always also include the need for patients and others to have confidence in the competence of prac­titioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession (s 150 of the National Law, Hanna at [18] and Crickitt at [56])

No need to determine whether conduct is ‘professional misconduct’ or ‘unsatisfactory professional conduct’ Apart from what is involved in assessing the risk referred to in the preceding subparagraphs, it is not otherwise necessary for the Tribunal to determine whether the conduct under notice consti­tutes ‘professional misconduct’ or ‘unsatisfactory professional conduct’ or to make findings as to the fitness of the practitioner to retain registration as a medical practitioner. Those are matters that may fall to be addressed at a later stage, if and when disciplinary proceedings are taken against the appellant. (s 150 of the National Law and Hanna at [22])

Nature of suspension power under s 150 An order made under s 150, including a suspension order, is in the nature of an interlocutory order and often must be made on the basis of limited information. (s 150 of the National Law and Crickitt at
[51] and the authorities cited there; Lindsay at [79])

 

[1] Health Practitioner Regulation National Law (NSW).

[2] Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 [27]; Ghosh v Medical Council of New South Wales [2020] NSWCA 122 [9].

 

An example of a successful section 150 hearing is below:

Section 150 Health Practitioner Regulation Hearing – No Suspension or Restriction on Registration

 

My client, a medical practitioner, was summoned to an urgent hearing pursuant to section 150 of the Health Practitioner Regulation National Law (NSW) provision.

This is an urgent hearing before the Medical Council of New South Wales which allows the Medical Council to suspend or restrict a medical practitioner’s registration if the Council is satisfied it is appropriate for the protection of the health or safety of any person or if satisfied that it is otherwise in the public interest.

Unlike a court, the Medical Council is not required to make findings of fact and can consider evidence that would otherwise be inadmissible in a court.

If the Medical Council orders a suspension and/or restriction on a medical practitioner’s registration, this can have a disastrous effect on an individual medical practitioner, as they are no longer able to practice medicine.

I provided advice to my client regarding the procedures of the Medical Council hearing as well as what the Medical Council needs to consider to make it’s decision. I assisted my client with the preparation of evidence to support their defence.

At the end of the hearing, the Medical Council decided that it was appropriate to take no action against my client’s registration. This was a great result as it allowed my client to continue practising medicine.

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