Kirby v Health Care t/as Health Care Complaints Commission

In this matter, the applicant, Dr Kirby, sought judicial review of a decision made by the Health Care Complaints Commission (HCCC) in relation to a complaint against his professional conduct. The Commission found that Dr Kirby had engaged in misconduct and ordered that he be prohibited from practising as a registered health practitioner. The legal challenge centred on two primary grounds: whether the decision-maker was affected by apprehended bias and whether the Commission failed to consult the relevant professional council before making the prohibition order.

The court examined the evidence to determine if the decision-maker was influenced by any apprehended bias, which could undermine the fairness of the decision. It also scrutinised the process followed by the Commission in relation to consulting the relevant professional council under section 39(2) of the Health Care Complaints Act 1993 (NSW) before issuing the prohibition order under section 41A. The court considered whether the Commission adhered to the statutory requirements and whether the complaint against Dr Kirby, which pertained to conduct outside the field of his registration, was appropriately addressed.

The court found no evidence to suggest that the decision-maker was affected by apprehended bias. It held that the Commission's process was procedurally sound, including the consultation with the relevant professional council. The court determined that the Commission was not required to consult the council in this instance because the complaint did not relate to conduct within the scope of Dr Kirby's registration. Therefore, the court dismissed the application for judicial review.

As a result of the court's decision, the prohibition order issued by the Health Care Complaints Commission against Dr Kirby remains in effect, and the application for judicial review was dismissed with no orders for costs.