Regulation and professional discipline

 

Professional regulation is a key element of safe, consistent, healthcare. We are genuine experts in all aspects of the Health Practitioners Competence Assurance Act. We regularly advise on registration, practising certificates, equivalence of qualifications, and practitioner competence, and impairment. At any one time, we will usually be managing several professional discipline cases. Our lawyers assist with Professional Conduct Committee investigations, and represent both PCCs and practitioners in proceedings before the Health Practitioners Disciplinary Tribunal. We have appeared in many of the leading cases relating to the operation of health registration authorities.

When it comes to professional regulation:

  • the health and safety of the public is the primary concern
  • regulatory authorities will be measured against high standards of procedural fairness
  • failing to renew your practising certificate on time is a recipe for trouble.

 

Examples of work done by Claro lawyers:

Competence reviews under the HPCA Act. We have advised many different regulatory authorities on all aspects of competence reviews, interim orders, and notifications. This has included drafting terms of reference, assisting reviewers, reviewing draft reports and advising authorities on their statutory decisions made at the conclusion of the review process. We have also advised individual practitioners who are having their competence reviewed. Our lawyers acted for the Physiotherapy Board in the District Court and then the High Court in the leading decision on competence reviews under the HPCA Act.

High Court statutory appeal on the jurisdiction of the Health Practitioners Disciplinary Tribunal to suspend (or defer) a penalty of suspension imposed on a health practitioner. We represented a professional conduct committee of the Dental Council in successfully prosecuting a dentist for professional misconduct in circumstances where the dentist continued to practise dentistry after being suspended by the Dental Council for safety reasons. The Tribunal imposed an order of suspension of six months, but suspended the commencement of that order for 2 years. The effect of this ‘good behaviour bond’ was that the suspension would only be felt by the practitioner if there was further offending of some kind. We subsequently acted for the professional conduct committee in successfully appealing the decision to the High Court, with the High Court agreeing that the Tribunal did not have jurisdiction to suspend a suspension in this way.

Interim action to protect the public. We regularly advise on statutory decisions under the HPCA Act to suspend practitioners, or impose conditions, in relation to competence, health and/or conduct concerns. Our lawyers have acted for authorities in challenges to the courts against interim decisions. See for example Cullen v Health Practitioners Disciplinary Tribunal and the Medical Council 28 May 2007, CIV 2007-485-1133 High Court, Auckland, Baragwanath J where a doctor challenged a decision to suspend his practising certificate.

Prosecuting and defending charges laid before the Health Practitioners Disciplinary Tribunal. We regularly prosecute on behalf of professional conduct committees of a number of regulatory authorities; in relation to charges for professional misconduct, convictions reflecting adversely on the profession, practising without a practising certificate. We also regularly defend practitioners facing charges before the Tribunal brought by the Director of Proceedings (HDC).

Judicial review of a decision by a regulatory authority to re-open a scope of practice. The authority’s consultation process was challenged and the authority’s powers and limits as an administrative/statutory decision-maker when prescribing scopes of practices/describing professionals was at issue.

Judicial review of the investigation of a complaint about a health practitioner. We acted for the practitioner, who applied to the High Court for review of the manner in which the regulatory authority and its professional conduct committee managed an investigation into a complaint. There was considerable delay in progressing the investigation. The High Court entered judgment by consent confirming that the delays were unfair to the practitioner, and granting a permanent injunction preventing the professional conduct committee from continuing its investigation.

Advice on a contentious recertification programme requiring all practitioners in a particular scope of practice to demonstrate competence in a core skill, or face suspension from practice. The requirement was driven by a need to protect the public, but there were strong objections from the profession. 18 months before the deadline, large numbers of practitioners were yet to meet requirements. We advised the authority on how to manage the issue in accordance with the HPCA Act, the option of notifying the Minister of Health of a potential workforce issue, and worked with the authority’s staff to plan and draft a communication strategy to ensure affected practitioners were aware of what was required, how they could meet requirements, and what was likely to happen if they didn’t do so.  All but a small handful of practising practitioners met requirements by the due date. These few were suspended from practice under section 43, with minimal impact on workforce numbers.

Extensive reviews of authorities’ delegations schedules and documents, including reporting and advising on identified risks, inconsistencies, the lawfulness of delegations, and re-drafting delegation documents to safeguard the authority from legal risk.

Reviews of statutory decision-making processes, including assessing the operational management of applications for registration, the reasonableness of processes used to make proposed decisions, the adequacy of the information provided to the authority for decision-making purposes, adherence to statutory processes and requirements. We also regularly advise on the merits of challenges to authorities’ decisions, and assist with processes to resolve legal issues before they are formalised by way of appeal or judicial reviews.

Appeals to the High Court from decisions made by the Health Practitioners Disciplinary Tribunal – both acting for appellant practitioners and responding on behalf of professional conduct committees.  This includes appeals against substantive findings, appeals against penalty and appeals against name suppression orders.  We have argued cases on the appellate courts’ approach on appeal and the role of expert witnesses in professional disciplinary proceedings.

 

Training we offer

  •  We regularly run professional educational programmes for health registration authorities covering topics such as good decision-making, registration and practising certificates, and competence, health, and conduct.
  • We provide induction training for new board members of registration authorities. This training includes an introduction to the HPCA Act and other relevant legislation, and guidance on good governance processes, including dealing with conflicts of interest and good decision-making
  • We provide expert witness training for health professionals who give expert opinions, write reports and give evidence in inquests, disciplinary hearings and other court settings. The one day training involves case studies, report writing sessions, and includes a mock hearing where participants give evidence and are cross examined.

For more information on these training programmes, or if you wish to discuss your organisation’s training needs, contact Jonathan Coates or Anita Miller.