1. Understanding decision making - Prosecuting complaints Karen Mobbs Director of Proceedings Health Care Complaints Commission Patrick Griffin Barrister

2. Who was referred for possible prosecution in 2013-14?

3. Prosecuting complaints The Commission refers serious complaints against health practitioners to its Director of Proceedings to consider prosecution. The Director is not subject to the direction and control of the Commissioner in relation to dealing with complaints referred to the Director for consideration. The Commission must provide the Director with any submissions received under section 40 of the Health Care Complaints Act 1993 in relation to the complaint.

4. Prosecuting complaints The Health Practitioner Regulation National Law (NSW) provides grounds for complaints against registered health practitioners:  Unsatisfactory professional conduct  Professional misconduct  Impairment  Lack of competence, i.e. the mental and/or physical capacity to be a health practitioner (because of impairment or other reasons) or having insufficient communication skills  Convictions/criminal finding  Not a suitable person to hold registration

5. Definition of Unsatisfactory Professional Conduct Unsatisfactory professional conduct is defined in section 139B of the National Law and includes: “conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner’s profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.” 5

6. Definition of unsatisfactory professional conduct Section 139B provides for other forms of conduct to constitute unsatisfactory professional conduct, including –contraventions of the National Law (NSW) or the regulations –contraventions of the practitioner’s registration –improper or unethical conduct Sections 139C and 139D provide for additional matters that constitute unsatisfactory professional conduct for medical practitioners and pharmacists respectively. 6

7. Definition of professional misconduct Professional misconduct is defined at section 139E of the National Law (NSW) as: (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration 7

8. Determining whether to prosecute The Director of Proceedings independently determines whether or not to prosecute a complaint, before a disciplinary body, taking into account:  the protection of the health and safety of the public  the seriousness of the alleged conduct  the likelihood of proving the alleged conduct  any submissions the practitioner may have made. Must take into account any associated complaint.

9. Determining whether to prosecute (continued) If the Director of Proceedings determines that a matter does not meet the threshold for prosecution, it may be referred back to the Commission for further investigation, to consider other appropriate action or it may be terminated by the Director. Consultation with the relevant Council about the determination whether or not to prosecute and if prosecuted, in which forum.

10. Experts finds significant departure from accepted standards Commission may terminate complaints; refer the practitioner to the Board or make comments The expert is strongly critical of the conduct yesno Complaint is referred to the Director of Proceedings to consider prosecution Prosecution before PSC Prosecution before Tribunal no yes

11. Forums for prosecution – Professional Standards Committee Only relating to nurses, midwives and medical practitioners. Professional Standards Committees have four members: –a legal member –a lay member –two professional members who are registered in the same profession as the practitioner who is being prosecuted. Hearings are generally open to the public and decisions are publicly available unless otherwise ordered. The parties can be represented by legal practitioners.

12. Forums for prosecution – NSW Civil and Administrative Tribunal Hears more serious matters for all registered professions. The Tribunal consist of four members: –a legal member –a lay member –two members who are registered in the same profession as the practitioner the subject of the complaint. Proceedings are open to the public and decisions are publicly available. Parties can be legally represented. 12

13. Possible outcomes Professional Standards Committee/Tribunal must find the subject matter of a complaint proved or have the practitioner admit the conduct before it can make protective orders. Both Committees and the Tribunal can: –caution or reprimand the practitioner –impose conditions on the practitioner’s registration –order that the practitioner seek and undergo medical or psychiatric treatment or counselling –order that the practitioner complete an educational course –order that the practitioner report on their practice –order that the practitioner seek and take advice re their practice from specified persons –make conditions ‘critical compliance’ conditions –impose a fine –recommend suspension or cancellation in relation to lack of capacity.

14. Possible outcomes (continued) Only the NSW Civil and Administrative Tribunal can:  cancel or suspend a practitioner’s registration  disqualify a practitioner from applying for registration  can also make a prohibition order if it satisfied that the person poses a substantial risk to the health of members of the public  order the payment of costs.

15. Outcomes of prosecutions 2013-14

16. Outcomes of prosecutions 2013-14 (continued)

17. Summary – Decision making when prosecuting complaints  Director of Proceedings independently determines whether or not to prosecute and in which forum.  Consultation with relevant Council.  More serious matters heard before Tribunal who has the power to cancel registration.  Disciplinary proceedings and decisions generally public.  Commission issues media releases in relation to decisions by Professional Standards Committees and Tribunal.