If someone had made allegations against you, how would you wish them to deal with you in any proposed disciplinary proceedings?
Would you expect to be dealt with fairly?
Obviously, decisions made by relevant committees have dramatic and significant affect on the lives of individuals. Decisions can affect the future and financial livelihood of individuals.
It is for these reasons, that the health professions generally are seeing an increase in the threat of litigation against their decisions on matters of training and discipline.
Just as the Olympics have seen an increase in resort to legal action – whether it is drug-testing results or selection for particular events – so too, health professionals are prepared to resort to legal measures where their career and livelihood are under threat.
There are a number of circumstances in which the activities of committees may be the subject of legal review. These include:
- The recognition of training
- Selection for appointments
- The removal from roles
- Discipline of individuals in general
Each of these procedures have particular bodies or committees to deal with them, and operate under different rules and regulations. The discipline of members’ generally, is dealt with pursuant to their constitution or other rules.
However, each of these committees and bodies is, to some extent, subject to legal rules and principles, including the possible application of the rules of “natural justice”.
It is not unusual, when an individual has had a decision made contrary to their interests, to have their lawyer scream that the decision was a “denial of natural justice”. In many cases, the mere utterance of the words are intended to strike fear and terror into the hearts of the committee or body making the decision. In fact, there should be nothing mysterious about the rules governing “natural justice”, since they accord with common sense and fairness. In addition, they do not always apply.
The rules of “natural justice” are likely to apply where some allegation is made against a particular individual, where some harm or disciplinary action is likely to be taken against an individual, or where some rights of a particular individual are affected.
The general principles underlining “natural justice” are as follows:
Appropriate Notice
It would seem fair to most people that, where the rights of an individual are affected, the individual should have notice of any hearing and have the opportunity to put their view. This right is one of the fundamental principles underlining “natural justice”.
Appropriate notice should be given to the individual, setting out in general terms the nature of the hearing or meeting, the substance of any particular of any particular allegations being made against the individual, and the evidence or factual material upon which the committee or body purposes to rely.
The notice should be given to the individual in sufficient time to enable the individual to consider the material and prepare submissions.
Obviously, the more damaging or important the allegations, or the more severe the likely punishment or consequences, then the more detail will be required of the allegations.
If the individual does not believe that he or she has had ample opportunity to prepare for a hearing, it may be important to adjourn the meeting for a period of time to permit the party to properly prepare their case.
In cases where a person is being selected competitively, there may still be “allegations”, or at least adverse material relevant to a candidate, upon which the relevant board or selection committee may base their judgement. It would be fair for the candidate to have any adverse material put to them, so that they could adequately respond and give any explanation that may be available.
Relevance
No matter what the particular activity of the board or committee, only material relevant to the actual decision required should be considered by the board or committee.
It will come as no surprise to some to hear of times past, where boards or committees, when selecting individuals, took into account a range of factors that many today would regard as completely irrelevant to the decision of whether to select them. Certainly, in more recent times, legislation ensures that circumstances such as race, religion, gender and a range of other grounds can form no part of a decision regarding selection or in relation to any disciplinary action.
Whilst not covered by legislation, presumably we would also consider the chosen football team supported by candidates to be an irrelevant factor, as much as whether their hobbies included opera or macrame.
The simple principle is that the selection committee or the disciplinary committee should confine their considerations to material relevant to the decision at hand. They should not permit consideration of irrelevant material, and where irrelevant material is presented, it should be made clear that it is not being considered or relied upon in any way.
Bias
A committee must be free of bias. That is, the membership of the committee should not include any person previously having taken part in any substantive decision affecting the individual, and should not have any relationship with the individual (whether family, commercial or otherwise), which would preclude them dealing with the matter with an open mind.
Again, common sense would dictate that the relevant committee should operate impartially and without prejudice, and most importantly, to be seen to do so.
Pre-judgement
Similar to the question of bias, is the question of whether the committee, or any member of the committee, has previously made a decision about the individual, which would suggest that they have already pre-judged the issue. For example, a committee member who has carried out an investigation of an individual and may have prepared an investigative report and given a recommendation to the committee, could then not sit as a committee member to determine the committee’s view of the matter.
This does not mean that the committee cannot delegate particular tasks of the committee to a smaller number, or to particular individuals. However, a committee member cannot have been part of a formal process where some judgement was already made regarding the suitability or otherwise of a candidate, or whether disciplinary proceedings were warranted or not.
Procedure
Most of the procedures of boards and committees remain relatively informal.
However, members of such committees should make themselves aware of any particular requirements, either under the organisation’s rules or regulations, or the principles of “natural justice” generally, so that any necessary requirements can be observed.
There is nothing wrong with informality, so long as any required procedures have been adequately taken into account.
For example, it would be important for each board or committee to determine upon what criteria a decision is to be made before proceeding to deal with the matter.
Additionally, in relation to disciplinary procedures, it might be considered that the individual against whom allegations are made, should be permitted professional legal representation. In most of the disciplinary procedures the individual would be permitted to have legal representation present to advise, but not necessarily to act as an advocate.
Obviously, the more important the outcome of the proceeding, the more formality may be required. For example, disciplinary proceedings which may remove membership from an individual, or proceedings akin to a hearing by a tribunal, where a license to practise may be removed, will require a greater degree of formality and structure.
Rules of Evidence
Committees are not usually bound by formal legal rules of evidence, unlike courts. They are entitled to hear material from any source, and determine themselves what weight to place on the material.
Obviously, committees should avoid placing any or too much weight on information from anonymous parties, or information which is second or third hand. Similarly, opinions should be regarded merely as such, unless the person forming the opinion is entirely qualified to have their opinion respected.
Again, without formal rules, evidence to be considered must nonetheless be relevant to the issue at hand.
Defamation
Normally, in relation to disciplinary proceedings particularly, the parties directly involved will not be subject to the ordinary laws relating to defamation. It is said that the protection of “privilege” against defamation applies to these proceedings. This would also extend to material prepared prior to and for the committee’s deliberations, such as statements of witnesses and report providers.
However, statements made by individuals which go beyond what is strictly necessary for the proceedings, may lose protection from defamation, particularly if it is mischievous or malicious.
Thus, whilst there is some protection against defamation involved in these procedures, participants should still deal only with relevant matters and not stray into character assassination or clearly irrelevant material.
Legal Advice
There may be many sensitive issues or complicated questions of law or procedure. Of course, legal advice should be sought at an early stage to avoid legal error and potential claims.
How we can help
If you have questions or require further assistance in relation to natural justice in the health sector, please contact Michael Gorton AM, or a member of our Health team.
If you would like to stay up-to-date with Russell Kennedy’s Alerts and Insights from our Health team, you can subscribe to our mailing list here.