Conduct issues generally relate to behavioural acts or omissions and often go to the question of character. The conduct pathway allows the Council to manage complaints that may constitute unsatisfactory professional conduct or professional misconduct.
The Council and the Health Care Complaints Commission (HCCC) consult on the management of all complaints. Where it is agreed there are grounds for a complaint of unsatisfactory professional conduct or professional misconduct, the matter is referred to the HCCC for investigation.
Section 23 of the Health Care Complaints Act provides that the HCCC must investigate complaints that raise serious issues of public health and safety or a significant question as to the appropriate care or treatment of a client and which, if substantiated, would provide grounds for disciplinary action against a practitioner.
As part of the investigation, the HCCC may obtain statements from the practitioner, the complainant and other relevant parties. The HCCC also has the power to require any information, including by executing a search warrant or seizing medical records.
The HCCC routinely engages experts to review the relevant evidence and to give an opinion on the conduct of a health practitioner, including whether there has been a significant departure from accepted professional standards. At the end of an investigation, the HCCC will give the practitioner an opportunity to respond to its findings.
Following consultation with the Council, the HCCC may refer its investigations to the Director of Proceedings to determine whether the complaint should be prosecuted before a disciplinary body. In doing so, the Director will take into account criteria set out in section 90C of Health Care Complaints Act (the Act):
- the likelihood of proving the complaint
- the seriousness of the allegation
- any submissions the practitioner may have made, and
- the protection of the health and safety of the public.
Council Inquiry - Conduct
Section 145B(1)(e) of the Health Practitioner Regulation National Law (the Law) provides that a Council may deal with a complaint by conducting an inquiry at a meeting of the Council. If the Council makes a finding of unsatisfactory professional conduct, it may do any one or more of the following in relation to the practitioner the subject of the inquiry:
(a) caution or reprimand the practitioner
(b) make an order for the withholding or refunding of part or all of the payment with respect to the fees charged or paid for the services that are the subject of the complaint
(c) direct that specified conditions relating to the practitioner's practice of the health profession be imposed on the practitioner's registration
(d) order that the practitioner seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling)
(e) order that the practitioner complete an educational course specified by the Council
(f) order that the practitioner report on his or her practice at the times, in the way and to the persons specified by the Council
(g) order that the practitioner see and take advice, in relation to the management of his or her practice, from persons specified by the Council.
Counselling - Conduct
In accordance with section 145B(1)(g) of the Health Practitioner Regulation National Law (NSW) (the Law) the Council may direct a practitioner to attend for counselling at a meeting of the Council in relation to their conduct.
Counselling is generally conducted by members of the Council, the main purpose of which is to inform and remind practitioners about their professional responsibilities, to assist them in finding ways to enhance and improve their practice and to provide insight into the ethical standards underpinning their professional practice.
Counselling of this nature occurs when the Council identifies issues that may constitute a departure from acceptable standards of practice or where the Council needs to assure itself that a practitioner is aware of the acceptable standards of practice and conduct.
Counselling is not designed as a disciplinary measure, but rather as an educative process. The counselling interview is confidential, informal and largely advisory in nature.
If the Council is satisfied with the outcome of the interview, that will be the end of the matter. However, if during the course of the interview, further issues come to light that give rise to concern, or if the Council is not satisfied with the outcome of the discussion, the Council may raise a new complaint that will be handled through an alternative pathway.