Medical Professional Complaints

How can Andrews Legal assist with Medical Board Disciplinary Proceedings

Our experienced team and assist with providing legal advice and representation in relation to disciplinary investigations conducted by AHPRA. We can also assist with all aspects of your legal representation in Medical Board proceedings in the State Administrative Tribunal.

Our expert lawyers are highly experienced in disciplinary proceedings and have a long-established track record. Unlike many of our competitors, we specialise exclusively in criminal law and disciplinary proceedings. Our team skillfully marshal the facts and the law to expertly defend you, ensuring that you are well informed about the legal process, that your case is dealt with fairly and your rights are safeguarded, maximising your prospects of a successful outcome.

Who regulates the medical professions in Western Australia?

The medical professions are regulated by the Australian Health Practitioner Regulation Agency (“AHPRA”). AHPRA oversee the training, qualifications and practices of medical professionals such as doctors, nurses, dentists, psychologists, physiotherapists, occupational therapists and chiropractors throughout Australia. The agency are also responsible for investigating possible misconduct by medical professionals, as well impairments such as investigating concerns around possible drug addiction, alcoholism and medical incapacity.

How do AHPRA initiative an investigation into a medical professional?

Investigations are usually initiated following the making of a complaint. Complaints can be lodged by members of the public, employers and co-workers. The identity of a complainant is confidential and may not be disclosed. An investigation may also be commenced where a medical professional is charged with a notifiable offence, this includes most criminal offences. Medical professionals are required to notify AHPRA if they are charged with a criminal offence within 7-days of being charged.

If AHPRA initiate an investigation into your conduct, you will be notified in writing of the commencement of the investigation.

What is an interim notice of suspension?

If AHPRA commence an investigation, they may consider issuing you with a notice of immediate suspension pending the outcome of the investigation. This is generally only done where the alleged misconduct is serous, the complaint appears credible, and AHPRA consider that it may endanger the public if you were to continue practicing while the investigation into your conduct is carried out.

AHPRA will usually notify you of their intention to impose an immediate suspension and give an opportunity to respond before the suspension commences. The suspension is interim in that it remains in effect until the conclusion of the investigation or any disciplinary proceedings.

You will be given a relatively short timeframe to respond to the notice of immediate suspension by making a written submission. You will also be provided with a copy of the complaint and any supporting evidence provided by the complainant to enable you to obtain legal advice before formulating your submission.

The Medical Board will then decide at a meeting whether it is appropriate to impose an immediate suspension having regard to the nature of the complaint, any supporting evidence provided by the complainant, and your submission in response. If the Medical Board decide to impose an immediate suspension of your practicing licence, you have a right to challenge the suspension in the State Administrative Tribunal.

Can I give a voluntary undertaking in lieu of an interim suspension?

If AHPRA serve you with notice of an intention to impose an immediate interim suspension, you may choose instead to give a voluntary undertaking that you will not practice your profession until the investigation and any subsequent disciplinary proceedings are concluded. By giving an undertaking not to practice you will avoid a suspension being recorded on the register.

Alternatively, you may give an undertaking to continue practicing subject to specified conditions. If you give a voluntary undertaking, it will continue in effect until the investigation and any subsequent disciplinary proceedings are concluded, or until the undertaking is revoked by the Medical Board or the State Administrative Tribunal.

What does AHPRA’s investigation process involve?

When AHPRA commence an investigation into alleged misconduct, they will provide you with a copy of the complaint that has been lodged, and a copy of any supporting evidence that the complaint has provided, with the complainant’s identifying details redacted. You will be invited to provide a response and provide any supporting material which may assist the investigation, including material which tends to disprove the complaint.

It is often prudent to wait until AHPRA have gathered and provided you with a copy of all relevant evidence before formulating a submission in response to an investigation. During the investigation AHPRA evidence such as witness statements from the complainant and potentially other people involved with the treatment, medical records and other documentary evidence. T. You are legally entitled to consider all relevant, significant and potentially adverse evidence that AHPRA have obtained before responding to the investigation. The investigation process may be lengthy, depending on the nature and complexity of the complaint and the relevant evidence, the investigation may take longer than 12-months.

Once AHPRA have gathered all relevant evidence, they must provide you with either a copy of the evidence or otherwise where the material is particularly sensitive, a comprehensive outline of all relevant and potentially damaging evidence so that you are able to respond to the complaint in detail.

You have the right to be provided with all relevant information that the investigation has obtained, to enable you to fully understand the allegation and obtain legal advice, before you respond to the complaint. Once the investigation is completed, you will be invited to respond in writing to the investigation and all relevant materials obtained.

Following the completion of the investigation, the Medical Board will consider the complaint, relevant evidence obtained by the AHPRA investigation, your response to the investigation and any evidence that you have provided to the investigators. The Medical Board may decide to refer the matter to the State Administrative Tribunal for disciplinary proceedings or may decide to simply close the investigation if there is insufficient evidence to proceed with disciplinary proceedings against you or if they are not satisfied that the conduct warrants disciplinary proceedings.

What if the Medical Board decide to commence disciplinary proceedings in the State Administrative Tribunal (“SAT”) ?

At the conclusion of an investigation, the Medical Board may decide to refer the matter to the State Administrative Tribunal for hearing. The matter will initially be listed for a directions hearing before the President of the Tribunal. The purpose of the directions hearing is simply to program the matter for either a mediation or a final hearing. No evidence will be presented at this initial direction hearing. Usually, complaints brought by a medical board are referred for mediation before proceeding to a final hearing.

What is the mediation process in SAT?

A mediation is confidential process where you will meet in conference with your legal counsel, a member of the medical board will also be present with their counsel, the mediation is conducted by a member of State Administrative Tribunal. The member who presides at the mediation is not able to preside in your case if it later proceeds to a hearing in SAT.

All discussions and materials used for the purpose of the mediation are strictly confidential, these cannot be used against you at a later final hearing. The purpose of the mediation is to attempt to resolve the matter without the need for a hearing in one of the following ways:
i. Based on discussions at the mediation and any further evidence you may provide, the medical board decide to withdraw some or all the complaint;
ii. You admit to some or all of the alleged conduct, and the matter is dealt with by your consent to an agreed set of facts and an agreed penalty. If the penalty is unable to be agreed, this will be determined by the Tribunal following submissions made by both parties.

At the conclusion of the mediation, your case may either be programmed for a further mediation to enable negotiations to continue, or it may be listed before the President of SAT to be programmed for a future hearing date.

How are disciplinary proceedings conducted in SAT?

Hearings in SAT are conducted before 3 members of the State Administrative Tribunal. At the hearing, the Tribunal may hear evidence from witnesses and form yourself, and will receive any documentary evidence which the parties rely upon. At the conclusion of the hearing, the Tribunal will firstly determine any facts which are in dispute, will make findings about whether the conduct complained of constitutes any of the following:
i) professional misconduct,
ii) unsatisfactory professional performance, or
iii) unprofessional conduct.

What are the consequences of a finding of misconduct in Medical Board proceedings?

If you are found to have engaged in any of the above categories of misconduct, the Tribunal may decide to impose any one or more of the following. The orders will be informed by the nature and seriousness of the conduct, and which orders the Tribunal considers best protect the public and ensure that your practice of medicine is conducted safely.
(a) caution or reprimand; or
(b) a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or
(c) a condition requiring the practitioner to undertake a specified period of supervised practice; or
(d) a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner’s practice; or
(e) a condition requiring the practitioner to manage the practitioner’s practice in a specified way; or
(f) a condition requiring the practitioner to report to an specified person at specified times about the practitioner’s practice; or
(g) a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons; or
(h) require the practitioner to pay a fine of not more than $30,000 to the National Board that registers the practitioner;
(i) suspend the practitioner’s registration for a specified
period;
(j) cancel the practitioner’s registration.
(k) Order the practitioner to pay some or all the Medical Board’s costs in the proceedings.

Contact Our Team of Experienced Defence Lawyers Today

Want to speak to someone about a medical professional complaint that you’re facing? For expert legal advice when it comes to disciplinary proceedings, look no further than our experienced lawyers in Perth. Contact our team at Andrews Legal today for the best advice and representation by calling (08) 9221 2991.

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