The symbiotic relationship between the Medical Council of NSW and the HCCC: Working harmoniously to protect the health and safety of the public in NSW

11 June 2024

Trinh v Medical Council of New South Wales [2024] NSWCA 58.

Background

On 27 October 2021, the Medical Council suspended the medical registration of Dr Trinh pursuant to section 150 of the Health Practitioner Regulation National Law 2009 (NSW) (the National Law) following the receipt of two complaints that raised concerns about Dr Trinh’s performance and conduct as a medical practitioner.

On 23 March 2022, the Medical Council affirmed its previous decision to suspend Dr Trinh’s medical registration pursuant to section 150A of the National Law.

The Proceedings

On 14 October 2022, Dr Trinh filed a summons in the NSW Supreme Court, Court of Appeal, seeking judicial review of the Medical Council’s decisions to suspend her medical registration.

Dr Trinh’s application was that the Medical Council’s decisions were invalid for the following reasons:

  1. the Council did not properly exercise its authority to delegate its functions pursuant to the National Law; and
  2. the Council failed to immediately refer the matter to the NSW Civil and Administrative Tribunal for disciplinary proceedings.

On 15 March 2024, the Court of Appeal (Mitchelmore JA, Basten AJA and Griffiths AJA) dismissed Dr Trinh’s summons with costs.

Valid delegation of the Council’s functions

Dr Trinh argued that the panel delegates who presided over the sections 150 and 150A proceedings had not been validly appointed as the Medical Council had improperly delegated this function to its Executive Officer.

The Court rejected this argument and instead found that:

  1. the Medical Council could properly delegate such functions to its Executive Officer based on the administrative responsibilities and associated authority of this role;1 and
  2. alternatively, such an administrative function was conferred on the Executive Officer by the instrument of delegation issued by the Medical Council on each occasion, which had a dual operation of both conferring the Medical Council’s functions under sections 150 and 150A of the National Law to the panel delegates and delegating the administrative function of appointing such individuals to the Executive Officer.

Failure to immediately refer the complaints to the Tribunal for determination following the suspension of Dr Trinh’s medical registration

A secondary issue considered by the Court was whether the Medical Council, having decided to suspend Dr Trinh’s medical registration, came under an immediate obligation to refer the matter to the Tribunal for determination by way of disciplinary proceedings pursuant to its obligation under section 145D(1) of the National Law.

The Court understood Dr Trinh’s submission on this issue to be that the Medical Council’s failure to refer the matter to the Tribunal after 27 October 2021 invalidated the suspension of her medical registration because it removed the ‘primary mechanism for limiting the period of‘ the suspension; namely the determination of the matter by the Tribunal.

Dr Trinh relied upon the following observation made in Pridgeon v Medical Council of New South Wales (2022) 108 NSWLR 263 (Pridgeon) in support of her argument:

’52 By reason of the limitation in s145D(1)….If the Medical Council had formed the opinion that the complaint warranted suspension, it would have had to refer it to the Tribunal.’

The Court undertook an analysis of the Medical Council’s obligations in sections 145D and 150 of the National Law and concluded that it could not accept Dr Trinh’s argument. The Court found that section 145D(1) was not invoked by the Medical Council’s use of its powers pursuant to section 150, and that these two sections represented separate functions and purposes of the Medical Council.

In other words, in circumstances where the Medical Council considered it appropriate to impose a suspension on a medical practitioner’s registration under section 150 of the National Law, for the protection of public health and safety, or otherwise in the public interest, it did not follow that the Medical Council would also have formed the relevant opinion required to activate its duty under section 145D(1) of the National Law.

Ultimately, the Court found that neither the Council nor the Commission is under any duty to refer a complaint to the Tribunal until it is satisfied that:

  1. there is a valid complaint;
  2. the complaint has been investigated and found to be neither frivolous or vexatious; and
  3. the complaint has been the subject of consultation between the Council and the Commission.

It is only once the above steps have been completed that the obligation under section 145D(1) of the National Law may be enlivened, depending on the outcome of the investigation and the consultation process.

The Court therefore concluded that Dr Trinh’s argument with respect section 145D(1) of the National Law was ‘misconceived2 and, as a consequence, that the observation made in Pridgeon was inconsistent and should not be followed.

As part of its analysis, the Court also found that the obligation to refer a complaint to the Tribunal in section 145D(1) of the National Law was conditioned by the operation of sections 90B and 90C of the Health Care Complaints Act 1993 (NSW) (HCCC Act) in so far as its engagement was similarly limited by the requirements set out in these sections.

In conclusion, the Court determined that there were no inconsistencies in the legislative scheme for the management of health care complaints in NSW and that the statutes worked ‘harmoniously‘ together, as demonstrated by the Court’s contextual reading of section 145D(1) of the National Law.

The Court’s decision in this case clearly sets out the correct process which must be followed by the co-regulators when managing healthcare complaints in NSW, and the specific circumstances that would enliven their obligation under section 145D(1) of the National Law to refer a complaint to the Tribunal for determination. In doing so, the Court also identified and overruled the observation made in Pridgeon regarding this section of the National Law.

The above reflection is confined to only some aspects of the Court’s decision in this matter and is not comprehensive advice on the management of complaints by the Council and the Commission in NSW. The full decision can be accessed at Trinh v Medical Council of New South Wales – NSW Caselaw.

This article was written by Scott Chapman, Partner, and Jennifer Cheal, Senior Associate.


1Section 41Q(2) of the National Law.
2[29].

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