Professional discipline of health professionals

NCAT can make disciplinary findings and orders against a health practitioner or student for unsatisfactory professional conduct or professional misconduct.

Steps in an application for disciplinary findings and orders

Step-by-step guide of what to expect when an application is made to NCAT.

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A complaint about a health practitioner or student can be made to a Health Professional Council or the Health Care Complaints Commission (HCCC) (s 144C). A complaint about a health professional cannot be made to NCAT.

 

After a complaint is made, the Council or the HCCC may decide to make an application to NCAT for disciplinary findings and orders. This application will likely set out:

  • the provision or provisions of the National Law which the applicant relies on
  • details of the conduct said to justify the disciplinary findings
  • the orders the applicant wants NCAT to make against the respondent.

As soon as practicable after filing an application, the applicant will serve the health practitioner or student with a copy of the application stamped by NCAT and all material relied on.

 

The Civil and Administrative Tribunal Rules 2014 make provision for substituted service.

You can either present your own case to NCAT or have a lawyer represent you. You will usually need to be present to give your instructions to your lawyer.

 

Your lawyer needs to fill out a ‘Notice of Representation by legal practitioner or agent’ and submit it to the NCAT registry in person or by post. You have to send a copy of the Notice of Representation to the other party.

 

Should you wish to have a non-lawyer represent you, you may ask NCAT to grant leave to that non-lawyer to represent you. You should request this at a directions hearing (s 45 and cl 27 of Sch 5 to the Civil and Administrative Tribunal Act 2013). Leave is rarely given in occupational matters. 

After receiving the application and supporting material, the respondent has 21 days to file a ‘Reply to Application for Disciplinary Findings’ with NCAT and give a copy to the applicant.

 

If you are the respondent and you want to file a Reply after the deadline has passed, you will need to ask NCAT for an extension of time. You will need to provide reasons why you were unable to file the Reply within time. It is up to the discretion of NCAT whether or not to grant an extension of time.

 

The Reply must:

  • set out the details and basis of any preliminary issues the respondent wishes to raise, for example, the lodging of the application or reply out of time, jurisdiction of NCAT
  • admit or deny the conduct described in the application
  • set out any facts which the health practitioner or student is relying upon
  • state whether the respondent agrees or disagrees with any or all of the orders proposed in the application.

The parties will receive a Notice from NCAT informing them of the date, time and location to attend a directions hearing.

 

At the 'directions hearing', a Tribunal Member will talk to the parties about how the application will be resolved. Normally directions will be made for the applicant to provide evidence and submissions and for the respondent to provide evidence and submissions in response.

 

The application itself will not be heard at the directions hearing. Orders can be made in the absence of a party that does not appear at the directions hearing without a reasonable excuse.

 

NCAT may make a non-disclosure or non-publication order at a directions hearing and/or later at the hearing of the application (Civil and Administrative Tribunal Act 2013 s 64; National Law cl 7 of Sch 5D).

A hearing will take place unless it is dispensed with by NCAT, for example where both parties consent to the matter being determined only on the material and submissions filed by the parties.

 

The application will be heard by a four-member Tribunal panel (s 165B):

  • one legal member of a certain standing or a senior judicial officer if the respondent is a medical practitioner or student
  • two health practitioners from the same health profession as the respondent
  • one lay person (community member).

Both parties in the appeal will be given the opportunity to present their evidence. Find further information about what happens during a hearing.

 

The hearing may still go ahead if a respondent has been given the application, all supporting documents and sufficient notice of the hearing but fails to appear.

 

In some cases, the Tribunal panel will be able to give you their decision at the end of the hearing. However, in most cases the panel will need time to consider the case and will give their decision at a later date. NCAT aims to give a decision within approximately three months of the hearing. Complex matters may take longer.

NCAT may determine that the health practitioner or student is guilty of unsatisfactory professional conduct (s 139B) or professional misconduct (s 139E). The orders available to the NCAT are set out in sections 149A, 149B and 149C.

 

The following are examples of some of the orders NCAT may make in relation to a registered practitioner or student (s 149A):

  • caution or reprimand the person
  • impose conditions on the registration of the person
  • order that the person seek and undergo medical or psychiatric treatment or counselling
  • order that the person complete a specified educational course
  • order that a practitioner report and take advice on their practice
  • impose a fine on the person (s 149B)
  • suspend or cancel the person’s registration (s 149C)
  •  order that the person is prohibited from providing health services or specified health services (a prohibition order) (s 149C)

The following are examples of some of the orders NCAT may make in relation to a practitioner or student who is no longer registered (149C):

  • an order that NCAT would have suspended or cancelled the person’s registration if still registered – the relevant National Board can be ordered to record this in their National Register
  • an order disqualifying the person from being registered for a period of time or until certain conditions are complied with
  • a prohibition order
  • an order requiring conditions to be imposed on the person’s registration upon re-registration (s 149A).

When making its orders, NCAT can set a non-review period during which the person cannot seek to review one or more of the orders (under Div 8 of Pt 8).

 

NCAT’s decision will be published on the NSW Caselaw website.

NCAT may order a party to pay costs to another person as decided by NCAT (cl 13 of Sch 5D). NCAT may fix the amount of costs or order that the costs be paid as agreed or assessed.

 

The Civil and Administrative Tribunal Act 2013 makes provision for the enforcement of costs orders.

Parties cannot appeal to NCAT's internal appeal panel from a decision made for the purposes of the National Law (cl 29 of Sch 5 to the Civil and Administrative Tribunal Act 2013).

 

Parties can appeal to the Supreme Court against orders and decisions of NCAT. Leave of the Supreme Court is required to appeal against interlocutory decisions, decisions made with the consent of the parties and decisions as to costs. 

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