In our previous two articles, we discussed how the various councils such as the NSW Pharmacy Council, the Medical Council (collectively referred to as Health Councils) could suspend health practitioners’ registrations under section 150 of the National Health Law (NSW) and the equivalent sections in other states.
In this article, we discuss the takeaway points from the Hanna and Pridgeon cases.
TAKEAWAY POINTS
- Seek independent legal advice
It is important to seek advice from independent legal practitioners who can help you navigate through the legal process clearly, consider all your options carefully and are willing to properly challenge the relevant council when appropriate (on their jurisdiction, the relevance of their queries or other appropriate grounds).
Getting the right advice early is important. We have been able to represent clients at Section 150 hearings quite cost effectively where the end result is no conditions being imposed. If we have to act in an appeal to a tribunal or a court, the costs are significantly higher.
Whilst we have largely discussed Section 150 in context of New South Wales, similar provisions apply in the other states with Queensland, Victoria and Western Australia all being the same.
In the case of Pridgeon, it was held by the Court of Appeal that the decision to suspend a practitioner was only to be in the hands of the Tribunal and not the Health Council themselves. Since Dr Pridgeon had to go through two reviews, an appeal to the tribunal and an appeal to the NSW Supreme Court, having an experienced legal practitioner is extremely important to help you on the way.
- Stick to the complaint!
Do not let the Health Council turn their complaint into a matter of general inquiry with no focus. The process of responding to a serious complaint is already stressful enough without you having to go out of your way to assist the Health Council in finding something to use against you. You are entitled to hold the Health Council to their complaint and challenge other queries if they are not relevant or concern matters that are not being brought to you on notice.
Consider whether the complaint is ‘urgent’ and ‘in the public interest’ for the purposes of section 150. In Pridgeon’s case, the context in which public interested is determined was important. Indeed, contravention of Family Court orders and potential criminal charges were not sufficient to affect the particular public interest in NSW which was the reputation of the medical profession.
In the case of Hanna, the allegations made by the Pharmacy Council were not urgent and the restrictions affected the entire pharmacy business which had the flow on effect that any pharmacies that Mr Hanna had a financial interest in could not operate and impacted the staff’s ability to work and the provision of other pharmaceutical goods to the public.
This step is obviously much easier if you engage legal representation to do this for you, so you can focus on answering the questions on the complaint itself(with legal assistance in preparing any necessary material).
- Be cautionary in your dealings with the council
Far too often clients have acted for themselves in the initial hearing thinking that it is only a hearing with other health practitioners and that given the complaint isn’t serious, there won’t be any need to engage lawyers. Those clients are often blindsided when restrictions, or even suspensions, are imposed on their own registration which also often imposes restrictions on pharmacies (or their health-related business) that they own.
We don’t advocate an aggressive response, but getting proper material prepared and having legal representation organised in case is a prudent way to protect your employment and/or your business.
In appropriate cases you might even seek to have the hearing process stayed by the courts. These are all things that should be considered in consultation with a lawyer before you respond to the complaint.
- You don’t have to accept the decision
Remember you can appeal the decision of the Health Council, you don’t have to accept what they say. However, you have time frames in which any appeal must be lodged. If you find yourself with a bad decision, you need to get urgent legal advice.
You also have the right to ask the council to review their conditions. If you didn’t have legal advice at that time, you can always look to put together a proper submission to the council now seeking to have those restrictions removed and if need be appeal any refusal to remove those conditions.
For further information, please contact Andrew Lambros and Maurice Hannan.
Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).