DISCIPLINARY PROCESS

Complaints Assessment Committee
Medical Practitioners Disciplinary Tribunal

  • Function
  • Membership
  • Procedures
  • Notice of charges
  • Interim suspension
  • Public hearings
  • Findings
  • Penalties
  • Appeals

Self discipline is a necessary element of a profession. All involved should bear in mind the words of Justice Tipping of the court of Appeal, “Let us discipline by all means, but with humanity and with an eye to the healing of all concerned.”

Because the new Medical Practitioners Act was introduced only in 1996, complaints about incidents before 1 July 1996 are still dealt with by the Medical Council. Only complaints involving incidents after 1 July 1996 are dealt with by the Health and Disability Commissioner. The complaints process is outlined on page 72. Complaints are made to the Health and Disability Commissioner (or to the council, which refers them to the Commissioner); the Commissioner’s office may mediate, defer, set aside, prosecute, or refer the complaint to the Council for consideration by a Complaints Assessment Committee.

Complaints Assessment Committee

Once a complaint (oral or written) reaches the Council it is referred to a Complaints Assessment Committee (CAC). A charge brought by the Director of Proceedings under the Health and Disability Commissioner Act bypasses the CAC and goes straight to the Tribunal (MPDT).

The CAC comprises three members appointed by the President in consultation with other members of the Council. Two of the CAC are medical practitioners chosen for their suitability and experience of the matter under review, and one is a lay member; none are members of the Tribunal or the council. Both the doctor and the complainant are advised of the intended makeup of the CAC and are given an opportunity to object to the appointment. This objection has to be in writing to the President within five working days and must set out the reasons. The President must consider the matter but does not have to change the CAC.

The doctor must be advised of the particulars of any complaint or conviction (N.B. CACs also investigate matters referred by the Courts – generally convictions for matters punishable by more than three months in prison and offences under relevant legislation e.g. Medicines, Misuse of Drugs).

A CAC can regulate its own procedures and may appoint a legal assessor to advise on law, procedure or evidence. The legal assessor plays no part in the CAC’s decision making.

The CAC has to give the doctor and the complainant a reasonable opportunity to make a written explanation or statement and to appear before the Committee. CAC meetings are usually held in the nearest main centre to the events in question. The CAC decides as soon as reasonably practicable whether to

  • Review the doctor’s competence,
  • Review the doctor’s ability to practice medicine,
  • Seek to resolve the complaint by conciliation,
  • Refer to the Medical Practitioners Disciplinary Tribunal,
  • Take no further steps.

The CAC must give the doctor and complainant notice of its decision and the reasons. If conciliation is attempted the CAC tries to assist a resolution by agreement. If the matter is not resolved then the CAC must decide either to bring a charge before the Tribunal or take no further action.

If it decides to refer the matter to the MPDT the Tribunal frames the charges to be heard by the Tribunal and sends those to the Tribunal Chair. The CAC can recommend suspension from practice or conditions on practice pending a Tribunal hearing.

The case is prosecuted by a lawyer appointed by the CAC from a panel.

Medical Practitioners Disciplinary Tribunal

Function

The Tribunal’s function is to consider and adjudicate on charges put before it by the CAC or Director of Proceedings.

Membership

The Tribunal consists of a legal chairperson and a legal deputy plus a panel of up to 12 others. For each hearing the Tribunal must comprise 5 members with a majority of medical practitioners – three from the panel plus the legal chair (or deputy) and one lay person from the panel.

Procedures

The Tribunal controls its own procedures and has wide powers to summon witnesses and records. Refusing to attend or cooperate or acting in contempt are offences punishable by fines. The Tribunal may appoint legal or medical assessors to assist the Tribunal but they do not take part in the decision making phase.

The Tribunal has wide powers to amend the charges at any stage during the hearing (including increasing the level of the charge after the evidence has been heard and even after a guilty plea has been entered). If changes are to be made to the charges the Tribunal can adjourn the hearing if the doctor would be embarrassed in their defence.

Notice of Charges

If a Tribunal is to hear charges it must notify the doctor and complainant of the charges and provide enough particulars to inform clearly the substance of the allegations. A date of the hearing has to be set between 20 and 60 working days, though it can be adjourned or rescheduled.

Once doctors are notified of a charge they must advise the Tribunal within ten working days that they wish to be heard. If they fail to do so they risk being unable to defend the matter without the Tribunal’s agreement. The form sent to doctors with the notice of the charge clearly warns of this requirement.

A checklist is completed by the prosecutor and defence lawyer (or doctor) which deals with issues such as length of hearing, expert witnesses, suitable dates etc. A telephone conference is arranged to sort all of these issues out as much as possible to avoid problems and delays. Timetable orders are usually made for the exchange of witness statements and documentation. The CAC provides the defence with full copies of all relevant information and usually prepares an agreed bundle of documents for the hearing.

Interim Suspension

The Tribunal has the power pending a hearing to suspend the doctor or impose conditions on practice if it is necessary or desirable to protect the public safety. The Tribunal does not have to notify the doctor that it intends to impose a suspension but must advise them of the order and their right to apply for a revocation of the suspension. Any application for revocation has to be heard within ten working days.

Public Hearings

One of the major changes with the new system is that hearings of the Tribunal are now to be in public unless there is an order otherwise. The Tribunal has wide powers to restrict publication and hold hearings in private but the emphasis is on public hearings. These matters are dealt with in advance of the hearing.

Complaints are given special protection for matters of an intimate nature and the Tribunal can determine who is present during evidence and restrict publication. If the Tribunal makes a privacy order any person can apply for it to be revoked. This includes members of the media.

The Tribunal can regulate its own procedures. It usually has evidence in chief reduced to writing and read out by the witness with cross examination by the other lawyer and questions from the Tribunal members. The evidence is recorded into a transcript which is made available at breaks in the hearing. The hearings are usually in the closest major centre to the events and are held in suitable conference venues where there are facilities for hearing and waiting rooms.

The Tribunal procedures must accord with the rules of natural justice. Each party is given a fair opportunity to put their evidence and call such witnesses as are relevant. The prosecution has the burden of proof. They must establish the practitioner’s guilt. The Tribunal has to be satisfied to the civil standard of proof (on the balance of probabilities) but this can be on a sliding scale requiring a higher degree of probability the more serious the charge faced. The Tribunal can receive any relevant evidence whether or not that evidence would be admissible in a Court.

Findings

There are various levels of conduct which the Tribunal can find establish