YOONG and MEDICAL BOARD OF AUSTRALIA
[2015] WASAT 6
•28 JANUARY 2015
YOONG and MEDICAL BOARD OF AUSTRALIA [2015] WASAT 6
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 6 | |
| HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 | |||
| Case No: | VR:162/2014 | DETERMINED ON THE DOCUMENTS | |
| Coram: | JUSTICE J C CURTHOYS (PRESIDENT) | 28/01/15 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Preliminary issue decided in applicant's favour | ||
| B | |||
| PDF Version |
| Parties: | ANN FUI EN YOONG MEDICAL BOARD OF AUSTRALIA |
Catchwords: | National Law Appellable decision Performance and Professional Standards Panel |
Legislation: | Health Practitioner Regulation National Law (NSW) Act 2010, s 159(3), s 160, s 160(1) Health Practitioner Regulation National Law (WA) Act 2010, s 5, s 11, s 156, s 156(1)(a), s 178(1), s 178(2), s 182(1), s 190, s 190(3), s 191(1), s 191(1)(b)(ii), s 193(1), s 193(2), s 199 State Administrative Tribunal Act 2004 (WA), s 17, s 27 |
Case References: | Bernadt v Medical Board of Australia [2013] WASCA 259 Hanson v Nursing Midwifery Council of New South Wales [2012] NSWNMT 3 Liddell and Medical Board of Australia [2012] WASAT 120 O'Meara v The Dental Council of New South Wales [2014] NSWCATOD 19 Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72 |
Summary | This decision concerned the nature of an appellable decision under s 199 of the Health Practitioner Regulation National Law (WA) (Act) 2010 Schedule.,In a decision dated 10 July 2014, a Performance and Professional Standards Panel established under the National Law determined that Dr Ann Fui En Yoong, a registered medical practitioner, while in consultation with a patient, behaved in a way that constituted unprofessional conduct. The Panel decided that Dr Yoong be reprimanded and two conditions be imposed on her registration.,On 5 September 2014, Dr Yoong filed an application with the Tribunal pursuant to s 199(1)(i) and (k) of the National Law to set aside the decision of the Panel. Before the matter proceeded, the Medical Board raised a preliminary issue.,It was agreed by the parties that an order be made for the Tribunal to determine on the documents the preliminary issue, that is, whether Dr Yoong has a right of appeal to the Tribunal against the Panel's substantive finding that she behaved in a way that constitutes unprofessional conduct or whether her right of appeal is limited to an appeal against the penalty imposed by the Panel.,The Tribunal determined that an appeal under s 199 of the National Law is a hearing de novo in the widest sense and an appeal under s 199(1)(i) and (k) must necessarily extend to the conduct which leads to the outcome. The matter will now proceed to a hearing. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 CITATION : YOONG and MEDICAL BOARD OF AUSTRALIA [2015] WASAT 6 MEMBER : JUSTICE J C CURTHOYS (PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 28 JANUARY 2015 FILE NO/S : VR 162 of 2014 BETWEEN : ANN FUI EN YOONG
- Applicant
AND
MEDICAL BOARD OF AUSTRALIA
Respondent
Catchwords:
National Law - Appellable decision - Performance and Professional Standards Panel
Legislation:
Health Practitioner Regulation National Law (NSW) Act 2010, s 159(3), s 160, s 160(1)
Health Practitioner Regulation National Law (WA) Act 2010, s 5, s 11, s 156, s 156(1)(a), s 178(1), s 178(2), s 182(1), s 190, s 190(3), s 191(1), s 191(1)(b)(ii), s 193(1), s 193(2), s 199
State Administrative Tribunal Act 2004 (WA), s 17, s 27
Result:
Preliminary issue decided in applicant's favour
Summary of Tribunal's decision:
This decision concerned the nature of an appellable decision under s 199 of the Health Practitioner Regulation National Law (WA) (Act) 2010 Schedule.
In a decision dated 10 July 2014, a Performance and Professional Standards Panel established under the National Law determined that Dr Ann Fui En Yoong, a registered medical practitioner, while in consultation with a patient, behaved in a way that constituted unprofessional conduct. The Panel decided that Dr Yoong be reprimanded and two conditions be imposed on her registration.
On 5 September 2014, Dr Yoong filed an application with the Tribunal pursuant to s 199(1)(i) and (k) of the National Law to set aside the decision of the Panel. Before the matter proceeded, the Medical Board raised a preliminary issue.
It was agreed by the parties that an order be made for the Tribunal to determine on the documents the preliminary issue, that is, whether Dr Yoong has a right of appeal to the Tribunal against the Panel's substantive finding that she behaved in a way that constitutes unprofessional conduct or whether her right of appeal is limited to an appeal against the penalty imposed by the Panel.
The Tribunal determined that an appeal under s 199 of the National Law is a hearing de novo in the widest sense and an appeal under s 199(1)(i) and (k) must necessarily extend to the conduct which leads to the outcome. The matter will now proceed to a hearing.
Category: B
Representation:
Counsel:
Applicant : N/A
Respondent : N/A
Solicitors:
Applicant : Clayton Utz
Respondent : Australian Health Practitioner Regulation Agency
Case(s) referred to in decision(s):
Bernadt v Medical Board of Australia [2013] WASCA 259
Hanson v Nursing Midwifery Council of New South Wales [2012] NSWNMT 3
Liddell and Medical Board of Australia [2012] WASAT 120
O'Meara v The Dental Council of New South Wales [2014] NSWCATOD 19
Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72
Introduction
1 The Health Practitioner Regulation National Law (National Law) is given effect in Western Australia by the Health Practitioner Regulation National Law (WA) Act 2010 (the Act). The National Law is a schedule to the Act. This decision concerns the nature of an appellable decision under s 199 of the National Law.
2 Dr Ann Fui En Yoong is a registered medical practitioner under the National Law. At all material times, Dr Yoong practised as a specialist obstetrician and gynaecologist at Mercy Medical Centre, now St John of God Mt Lawley Hospital.
3 In a decision dated 10 July 2014, a Performance and Professional Standards Panel (the Panel), established under s 182 of the National Law, determined that Dr Yoong had behaved in a consultation in a way that constituted unprofessional conduct under s 191(1)(b)(ii) of the National Law, when she:
(a) displayed an abrupt and discourteous manner towards a patient; and
(b) failed to comply with the Code of Conduct by reason of a failure to communicate effectively with the patient (clause 2.2.5), and remain courteous, respectful and compassionate (clause 3.2.1).
4 On 8 August 2014, the Panel decided that:
(a) Dr Yoong be reprimanded; and
(b) two conditions be imposed on the Dr Yoong's registration:
(i) the first requiring completion of a communication course, and a course covering the topic of dealing with and managing cultural differences in medical practice; and
(ii) the second involving the appointment of a senior mentor to meet regularly with Dr Yoong to discuss ways to deal with difficult interactions with patients.
The preliminary issue
6 By consent and by order of the Tribunal made 23 October 2014, the following issue is to be determined by the Tribunal as a preliminary issue:
whether any right of appeal pursuant to s. 199 of the Health Practitioner Regulation National Law (WA) Act 2010 Schedule extends to the finding/s made by the Respondent (or a Performance and Professional Standards panel of the Respondent) in relation to a health practitioner's performance and/or conduct and its categorisation (e.g. a finding of unprofessional conduct), or whether the right is limited to the particular form of penalty imposed (e.g. a reprimand) in relation to that practitioner.
7 In essence, the question that arises is whether Dr Yoong has a right of appeal to this Tribunal against the Panel's substantive finding that Dr Yoong behaved in a way that constitutes unprofessional conduct pursuant to s 191(1)(b)(ii) of the National Law or whether her right of appeal is limited to an appeal against the penalty imposed by the Panel.
Notifications
8 Under the National Law, the National Board (the Board) may be notified of conduct by a health practitioner.
9 When the Board receives a notification about a health practitioner, a number of options are open to the Board as to how to respond to the notification.
10 In short, following a notification, the Board may:
(a) take a relevant action itself; or
(b) refer the matter to a panel; or
(c) refer the matter to responsible jurisdiction.
11 The option which the Board selects is determined, in part, by whether the notification relevantly relates to:
(a) unsatisfactory professional performance; or
(b) unsatisfactory conduct; or
(c) professional misconduct.
12 Section 5 of the National Law defines each of the above terms as follows:
unsatisfactory professional performance, of a registered health practitioner, means the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience[.]
unprofessional conduct, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers[.]
professional misconduct, of a registered health practitioner, includes -
(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession[.]
Immediate action
13 Section 155 of the National Law provides:
immediate action, in relation to a registered health practitioner … means –
(a) the suspension, or imposition of a condition on, the health practitioner's … registration; or
(b) accepting an undertaking from the health practitioner …; or
(c) accepting the surrender of the health practitioner's … registration.
14 Section 156(1)(a) of the National Law provides:
(1) A National Board may take immediate action in relation to a registered health practitioner or student registered by the Board if -
(a) the National Board reasonably believes that -
(i) because of the registered health practitioner's conduct, performance or health, the practitioner poses a serious risk to persons; and
(ii) it is necessary to take immediate action to protect public health or safety[.]
15 Section 178(1) of the National Law provides that the Board may take action if:
(a) a National Board reasonably believes, because of a notification or for any other reason -
(i) the way a registered health practitioner registered by the Board practises the health profession, or the practitioner's professional conduct, is or may be unsatisfactory[.]
…
(b) the matter is not required to be referred to a responsible tribunal under section 193; and
(c) the Board decides it is not necessary or appropriate to refer the matter to a panel.
16 Section 178(2) of the National Law sets out the actions the Board may take:
The National Board may decide to take one or more of the following actions (relevant action) in relation to the registered health practitioner … -
(a) caution the registered health practitioner …;
(b) accept an undertaking from the registered health practitioner …;
(c) impose conditions on the practitioner's … registration, including, for example, in relation to a practitioner -
(i) a condition requiring the practitioner to complete specified further education or training within a specified period; or
(ii) a condition requiring the practitioner to undertake a specified period of supervised practice; or
(iii) a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner's practice; or
(iv) a condition requiring the practitioner to manage the practitioner's practice in a specified way; or
(v) a condition requiring the practitioner to report to a specified person at specified times about the practitioner's practice; or
(vi) a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons;
(d) refer the matter to another entity, including, for example, a health complaints entity, for investigation or other action.
…
17 The disciplinary outcomes open to the Board reflect a series of outcomes ranging from the least serious, a caution, through to the most serious, the imposition of conditions.
Referring a matter to a panel
18 If the Board determines that it is appropriate or necessary to refer the matter to a panel, s 182(1) of the National Law applies.
19 Section 182(1) provides that:
(1) A National Board may establish a performance and professional standards panel if -
(a) the Board reasonably believes, because of a notification or for any other reason, that -
(i) the way a registered health practitioner practises the health profession is or may be unsatisfactory; or
(ii) the registered health practitioner's professional conduct is or may be unsatisfactory;
and
(b) the Board decides it is necessary or appropriate for the matter to be referred to a panel.
After hearing a matter about a registered health practitioner, a panel may decide -
(a) the practitioner has no case to answer and no further action is to be taken in relation to the matter; or
(b) one or more of the following -
(i) the practitioner has behaved in a way that constitutes unsatisfactory professional performance;
(ii) the practitioner has behaved in a way that constitutes unprofessional conduct;
(iii) the practitioner has an impairment;
(iv) the matter must be referred to a responsible tribunal under section 193;
(v) the matter must be referred to another entity, including, for example, a health complaints entity, for investigation or other action.
A panel must stop hearing a matter and require the National Board that established the panel to refer the matter to a responsible tribunal under section 193 if, at any time -
(a) the practitioner … the subject of the hearing asks the panel for the matter to be referred to a responsible tribunal under section 193; or
(b) if the subject of the hearing is a registered health practitioner -
(i) the panel reasonably believes the evidence demonstrates the practitioner may have behaved in a way that constitutes professional misconduct[.]
23 Section 190(3) of the National Law provides:
If a panel decides a registered health practitioner … has an impairment, or that a practitioner has behaved in a way that constitutes unsatisfactory professional performance or unprofessional conduct, the panel may decide to do one or more of the following -
(a) impose conditions on the practitioner's … registration, including, for example, in relation to a practitioner -
(i) a condition requiring the practitioner to complete specified further education or training within a specified period; or
(ii) a condition requiring the practitioner to undertake a specified period of supervised practice; or
(iii) a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner's practice; or
(iv) a condition requiring the practitioner to manage the practitioner's practice in a specified way; or
(v) a condition requiring the practitioner to report to a specified person at specified times about the practitioner's practice; or
(vi) a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons;
(b) for a health panel, suspend the practitioner's … registration;
(c) for a performance and professional standards panel, caution or reprimand the practitioner.
24 In addition to the disciplinary outcomes open to the Board, a panel may further reprimand a practitioner and suspend a practitioner's registration. A reprimand and a suspension are more serious disciplinary outcomes than a caution.
Referring matters to responsible tribunals by the Board or a panel
25 Both the Board and a panel may, and in certain circumstances must, refer a matter to a responsible tribunal.
26 Section 193(1) of the National Law provides:
(1) A National Board must refer a matter about a registered health practitioner … to a responsible tribunal if -
(a) for a registered health practitioner, the Board reasonably believes, based on a notification or for any other reason -
(i) the practitioner has behaved in a way that constitutes professional misconduct; or
…
or
(b) for a registered health practitioner … , a panel established by the Board requires the Board to refer the matter to a responsible tribunal.
The National Board must -
(a) refer the matter to -
(i) the responsible tribunal for the participating jurisdiction in which the behaviour the subject of the matter occurred; or
(ii) if the behaviour occurred in more than one jurisdiction, the responsible tribunal for the participating jurisdiction in which the practitioner's principal place of practice is located;
and
(b) give written notice of the referral to the registered health practitioner or student to whom the matter relates.
28 A responsible tribunal is able to impose the most serious disciplinary outcomes, including cancellation of a practitioner's registration.
The National Law appeal provision
29 The determination of the preliminary issue turns on the interpretation of s 199 of the National Law. Section 199(1) relevantly provides:
(1) A person who is the subject of any of the following decisions (an appellable decision) may appeal against the decision to the appropriate responsible tribunal for the appellable decision –
(a) a decision by a National Board to refuse to register the person;
(b) a decision by a National Board to refuse to endorse the person's registration;
(c) a decision by a National Board to refuse to renew the person's registration;
(d) a decision by a National Board to refuse to renew the endorsement of the person's registration;
(e) a decision by a National Board to impose or change a condition on a person's registration or the endorsement of the person's registration, other than -
(i) a condition relating to the person's qualification for general registration in the health profession; and
(ii) a condition imposed by section 112(3)(a);
(f) a decision by a National Board to refuse to change or remove a condition imposed on the person's registration or the endorsement of the person's registration;
(g) a decision by a National Board to refuse to change or revoke an undertaking given by the person to the Board;
(h) a decision by a National Board to suspend the person's registration;
(i) a decision by a panel to impose a condition on the person's registration;
(j) a decision by a health panel to suspend the person's registration;
(k) a decision by a performance and professional standards panel to reprimand the person.
The Tribunal's appellate jurisdiction
31 The appellable decisions under s 199 of the National Law cover a wide number of decisions of the Board, including decisions of a panel.
32 Section 202 of the National Law provides:
(1) After hearing the matter, the responsible tribunal may -
(a) confirm the appellable decision; or
(b) amend the appellable decision; or
(c) substitute another decision for the appellable decision.
(2) In substituting another decision for the appellable decision, the responsible tribunal has the same powers as the entity that made the appellable decision.
33 Section 11 of the Act provides that a reference in the National Law to an 'appeal' against a decision is 'a reference to a review of the decision as provided under the State Administrative Tribunal Act 2004 Part 3 Division 3'.
34 Section 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) provides:
(1) If the matter that an enabling Act gives the Tribunal jurisdiction to deal with is a matter that expressly or necessarily involves a review of a decision, the matter comes within the Tribunal's review jurisdiction.
…
(3) Where subsection (1) … applies the decision is a reviewabledecision for the purposes of this Act.
35 This 'appeal' is a 'review' application for the purposes of the SAT Act.
36 Section 27 of the SAT Act provides:
(1) The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decisionmaker but may involve the consideration of new material whether or not it existed at the time the decision was made.
(2) The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
(3) The reasons for decision provided by the decision-maker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision.
Rival contentions
37 Dr Yoong contends that a practitioner aggrieved by a decision of a performance and professional standards panel which has resulted in the imposition of conditions on that person's registration or a reprimand has a full right of appeal to the Tribunal. Dr Yoong contends that such an appeal extends to any finding of unprofessional conduct, or unsatisfactory professional performance, giving rise to the relevant condition or reprimand.
38 The Board contends that Dr Yoong's right of appeal is limited only to the particular form of penalty imposed by the Panel, and not to the underlying conduct.
Analysis
39 Whether a right of appeal arises from the Panel's decision under s 199 of the National Law is a matter of statutory interpretation.
40 The inquiry as to jurisdiction must begin with the relevant statutory provisions: Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72 (Roy Morgan) at [9]. A provision which confers jurisdiction upon a court is to be given no narrow construction. It is to be construed with all the amplitude that the ordinary meaning of its words admits: Roy Morgan at [11].
41 Although the responsible tribunals under the National Law are not courts (since appellable jurisdiction, whether of a court or a tribunal, is based in statute), there is no reason that appeals to a tribunal should not be construed with all the amplitude that the ordinary meaning of its words admits.
42 There have not been any decisions that deal expressly with the scope of an appellable decision under s 199 of the National Law. However, decisions relating to s 156 of the National Law do provide authoritative guidance as to the scope of s 199 of the National Law.
43 In Liddell and Medical Board of Australia [2012] WASAT 120 (Liddell), a medical practitioner sought a review pursuant to s 199(l)(e) of the National Law of an immediate action decision made by the Medical Board under s 156 of the National Law to impose certain conditions on his registration. In Liddell at [26], the Tribunal observed as follows:
As noted, these proceedings are brought by way of 'appeal' pursuant to s 199 of the National Law. By virtue of s 11 of the Health Practitioner Regulation National Law (WA) Act 2010, a reference in the National Law to an appeal against a decision to the responsible tribunal, is a reference to a review of the decision by the tribunal under the Stale Administrative Tribunal Act. 2004 (WA) Pt 3, Div 3. It is therefore a review by way of a hearing de novo - SAT Act s 27(1). The hearing is not confined to matters that were before the original decision-maker, in this case the Board, but may involve consideration of new material - s27(l) of the SAT Act. The hearing of the review may, therefore, as it has in this case, involve a more thorough consideration of evidence adduced by the parties than occurred before the Board. In this case, the Board adduced evidence from Patient A which was not before it when it made the decision to make immediate action. Likewise, Dr Liddell gave extensive oral evidence, was crossexamined, and called both expert and lay witnesses to support his case. In effect, therefore, although the parties were mindful of the questions to be answered, namely whether the practitioner's conduct gave rise to a serious risk to persons, and whether the proposed condition was necessary to protect public health or safety, the hearing proceeded much as though, it was the hearing of an allegation of professional misconduct brought by the Board against Dr Liddell. The Tribunal was thus much better placed than was the Board to examine the alleged conduct for the purpose of assessing whether Dr Liddell's conduct poses a serious risk to persons such as to require the imposition of the condition imposed by the Board.
44 Similarly, in Bernadt v Medical Board of Australia [2013] WASCA 259 (Bernadt), a medical practitioner appealed a decision of the Tribunal upholding the Board's decision to take immediate action to suspend his registration.
45 A decision to suspend a practitioner's registration is an appellable decision under s 199(1)(h) of the National Law. As stated by McLure P at [51] in Bernadt:
[A] practitioner the subject of an immediate action decision has a right to a hearing de novo, in its widest sense, before SAT.
46 Similarly, Newnes JA at [97] in Bernadt stated:
The Tribunal noted at the outset that the review of the Board's decision was by way of a hearing de novo. The Tribunal was not therefore confined to matters which were before the Board but may consider new material: SAT Act, s 27(1).
47 Since an appeal under s 199 of the National Law is a hearing de novo in the widest sense, an appeal under s 199(l)(i) and (k) must necessarily extend to the conduct which leads to the outcome.
48 It is implicit in Liddell that the scope of an appeal against a decision to take immediate action is not limited to the type of immediate action taken under s 156 of the National Law as a result of the Board holding a reasonable belief. In Liddell, the Tribunal did not limit its inquiry to the immediate action of imposing conditions, that is, the outcome. Rather, the Tribunal's inquiry extended to whether the Board's decision as to whether immediate action should have been taken was correct.
49 If the Board's contentions are correct, then the scope of the appeals in Liddell and Bernadt would have been limited to the immediate action taken and not whether there were proper grounds for taking the immediate action. The fact that the Tribunal and the Court of Appeal considered the question of whether there were proper grounds for the Board's reasonable belief means that the Board's contentions are not correct.
50 In the circumstances, the Tribunal does not accept the Board's contention.
51 The decisions in Liddell and Bernadt support the wide right of appeal contended for by Dr Yoong and not the narrow right of appeal contended for by the Board.
52 An appeal against a decision by the Board to take immediate action, for example, a suspension, is brought under s 199 of the National Law. An immediate action is expressed in terms of an outcome. Despite this, the hearing of an appeal against the outcome that constitutes the immediate action includes a review of the underlying conduct by the practitioner that led to the Board's immediate action.
53 The action taken by a panel following a hearing of the underlying conduct is expressed in terms of a disciplinary outcome, for example, a suspension.
54 In the same way that an appeal under s 199 against a decision taken by the Board under s 158 of the National Law includes a review of the underlying conduct, an appeal under s 199 against a decision taken by a panel under s 191 of the National Law includes a review of the underlying conduct.
55 Although the language of s 199(1) is on one view based on penalty, it would be a curious result that a person who is the subject of a decision could appeal the penalty but not the decision that forms the basis for the penalty. An appropriate penalty is so often intertwined with the finding to the facts that a separation of the two is necessarily artificial and it would require very clear words to hold that an appellable decision under s 199 of the National Law is restricted to a review of only the penalty.
56 The Board argues that the Health Practitioner Regulation National Law (NSW) Act 2010 (NSW Act)allows for an appeal against a decision of a panel but does so in terms which differ from s 199 of the National Law (in Western Australia) and in other States and Territories of Australia. Section 160(1) of the NSW Act makes clear that both the decision of the panel as well as any order or direction of the panel are appellable. Section 160(1) of the NSW Act provides:
A registered health practitioner who is the subject of a performance review may appeal to the Tribunal against a decision of the Performance Review Panel or any order or direction made by the Panel under Division 5.
57 Section 159(3) of the NSW Act provides that such an appeal is to be dealt with 'by reconsideration of the matter by the Tribunal ...'. In O'Meara v The Dental Council of New South Wales [2014] NSWCATOD 19, the Civil and Administrative Tribunal found that a finding of unsatisfactory professional conduct made by the Dental Council of the Council could be set aside. The issue of the construction of s 159(3) was not considered.
58 The breadth of the position in New South Wales was recognised in Hanson v Nursing Midwifery Council of New South Wales [2012] NSWNMT 3. The Civil and Administrative Tribunal held at [3]:
Section 160 of the Health Practitioner Regulation National Law (New South Wales) (the Law) provides that a nurse or midwife who is the subject of a performance review may appeal to the Tribunal against a decision of the Performance Review Panel or any order or direction made by that Panel.
59 The Board argues that the wording of s 160 of the NSW National Law has not been adopted in Western Australia and that, therefore, the Western Australian Parliament in enacting s 199 must have rejected the wider scope of appeal contended for Dr Yoong.
60 It does not follow that because the Western Australian Parliament did not adopt the language similar to s 160 of the NSW Act that no appeal lies against the underlying conduct.
61 Section 199 of the National Law does not provide a right of appeal against a panel's decision to caution the practitioner (s 191(3)(c)). It does not follow from that, that there is no right of appeal against the underlying conduct. A caution is at the lower end of the penalties that may be imposed. The imposition of conditions and/or a suspension are more serious penalties that are likely to have a more serious impact on the practitioner's practice. It is likely that because a caution is at the lower end of the severity of disciplinary penalties, that no right of appeal exists, rather than that Parliament intended the underlying conduct be excluded.
Conclusion
62 On the preliminary issue, the Tribunal determines that Dr Yoong has a right of appeal to this Tribunal against the Panel's substantive finding that Dr Yoong behaved in a way that constitutes unprofessional conduct pursuant to s 191(1)(b)(ii) of the National Law and that Dr Yoong's right of appeal is not limited to an appeal against the penalty imposed by the Panel.
I certify that this and the preceding [62] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J C CURTHOYS, PRESIDENT
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