Can Assessment Committee decisions be appealed?22 October 2018
In a recent NSW Civil and Administrative Tribunal (NCAT) decision, a dental practitioner was denied the right to appeal findings made by an “Assessment Committee”. After receiving a complaint in respect of the dental practitioner, the Dental Council requested that the Assessment Committee conduct an investigation pursuant to s 145B(1)(d) of the Health Practitioner Regulation National Law (National Law).
The dental practitioner had been one of many other practitioners treating the complainant. The complaint was first filed with the Health Care Complaints Commission (HCCC) in 2016 and never named the practitioner as a focus of the complaint. It was subsequently referred to the Dental Council, which, in turn, referred the matter to an Assessment Committee to provide recommendations to the Dental Council pursuant to s 145B(1)(d) of the National Law. The dental practitioner was asked to provide any information he had in respect of the matter and did so, thinking nothing further of it.
Unexpectedly, the Assessment Committee’s report recommended that the Dental Council deal with the complaint as a complaint of unsatisfactory professional conduct at a Dental Council inquiry against the dental practitioner who hadn’t been named in the complaint.
The surprises did not end there—not only did the Assessment Committee’s report attribute the actions of all other dental practitioners treating the complainant to him directly, it made a number of findings that were patently wrong. Nevertheless, the Dental Council proceeded on the Assessment Committee’s recommendation and listed the matter for an inquiry. At this inquiry, the dental practitioner would have to defend himself against the unfounded allegations and improper findings made by the Assessment Committee to avoid, among other things, suspension and cancellation of the his right to practice.
The dental practitioner’s lawyers reviewed the matter to identify whether there were any grounds for an appeal of the Assessment Committee’s findings. The lawyers determined that, on the basis of ss 158 and 158A of the National Law, the dental practitioner could appeal from a finding of the Committee or on a point of law, provided it is taken before the commencement of an inquiry but after the date of giving notice of the inquiry.
The dental practitioner filed an appeal before NCAT under ss 158 and 158A of the National Law. In response to the application to appeal the Assessment Committee’s findings, the Dental Council brought an interlocutory application to dismiss the appeal for lack of jurisdiction.
In short, the principal member found that despite the term “Committee” being relevantly defined as an “Assessment Committee” or a “Professional Standards Committee” under the National Law, “Committee” in ss 158 and 158A referred only to a “Professional Standards Committee” and not an Assessment Committee. On that basis, the appeal was dismissed and, as it currently stands, the dental practitioner will face a Dental Council inquiry in respect of a complaint that does not mention him.
However, there is one more piece of the puzzle, which may have been overlooked—the principal member’s finding regarding the definition of “Committee” does not appear to consider that the Dental Council does not have a Professional Standards Committee.