PART 2 | PROFESSIONAL CONDUCT AND DISCIPLINE |
| Professional conduct and ethics |
| 3. Every registered allied health professional must observe the pronouncements on professional matters and professional ethics issued from time to time by the Council. |
4.—(1) Where a Disciplinary Tribunal has been appointed under section 50(1) of the Act, the Council’s solicitor must send a notice set out in Form 1 of the First Schedule to the registered allied health professional concerned.(2) The notice mentioned in paragraph (1) must —| (a) | specify, in the form of a charge or charges determined by the Complaints Committee or (where the matter is referred to the Disciplinary Tribunal under section 39(4) or 49(13)(c)(i) of the Act) the Council, the matters which the Disciplinary Tribunal will inquire into; | | (b) | state the date, time and place at which the inquiry will be held; | | (c) | be sent —| (i) | by delivering it to the registered allied health professional, an adult member of his or her family, or an employee of his or her family or of his or her practice, at the registered allied health professional’s last known address; or | | (ii) | by registered post addressed to the registered allied health professional at his or her last known address; and |
| | (d) | be accompanied by a copy of the report of any expert witness whom the Council’s solicitor intends to call at the inquiry. |
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| (3) An inquiry must not be held earlier than 28 days after the date of the notice of inquiry except with the agreement of the registered allied health professional. |
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| Postponement or adjournment |
5.—(1) Subject to section 51(9) and (10) of the Act, a Disciplinary Tribunal may, of its own motion or upon the application of any party, postpone the commencement of any inquiry or adjourn any proceedings at any time.| (2) An application for the postponement of the commencement of an inquiry must be made in writing to the chairperson of the Disciplinary Tribunal at least 21 days before the date fixed for the commencement of the inquiry, unless the Disciplinary Tribunal allows the application to be made in a shorter period before the commencement of the inquiry, and must be supported by good reasons. |
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| Power to make orders and give directions for just, expeditious and economical disposal of inquiries |
6.—(1) A Disciplinary Tribunal may, at any time after it is appointed, of its own motion or upon the application of any party, direct any party or the parties to attend a pre‑inquiry conference before the chairperson of the Disciplinary Tribunal, in order that the chairperson may make such orders or give such directions of an administrative nature as he or she thinks fit for the just, expeditious and economical disposal of the inquiry.(2) Where the chairperson of the Disciplinary Tribunal is a registered allied health professional, he or she may be assisted at the pre‑inquiry conference by —| (a) | a legal assessor; or | | (b) | any member of the Disciplinary Tribunal who is a person mentioned in section 50(1)(a)(ii) or (iii) of the Act. |
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| (3) The chairperson of the Disciplinary Tribunal may adjourn a pre‑inquiry conference from time to time, either generally or to a particular date, as may be appropriate. |
| (4) The chairperson of the Disciplinary Tribunal may, in exercising his or her powers under this regulation, make such recommendation as to costs, as he or she thinks fit, to the Disciplinary Tribunal, including costs occasioned by any non‑compliance with a direction given or an order made by the chairperson under this regulation. |
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7.—(1) If the registered allied health professional wishes to raise any defence at the inquiry, the registered allied health professional or his or her counsel must, at least 10 days before the date fixed for the commencement of the inquiry, send to the Council’s solicitor the report of any expert witness whom the registered allied health professional or his or her counsel intends to call at the inquiry.(2) The Council’s solicitor must, as soon as practicable, send to the executive secretary of the Council —| (a) | a copy each of the notice mentioned in regulation 4(1) and any report mentioned in regulation 4(2)(d); and | | (b) | a copy of any report received from the registered allied health professional or his or her counsel under paragraph (1). |
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| (3) The Council’s solicitor and the registered allied health professional or his or her counsel must, as far as possible, co‑operate to prepare an agreed statement of facts, an agreed bundle of documents or exhibits to be used at the inquiry and their lists of witnesses to be called at the inquiry. |
(4) The Council’s solicitor must, at least 5 days before the commencement of the inquiry or within such time as may be directed by the chairperson of the Disciplinary Tribunal at a pre‑inquiry conference, send the following, if available, to the executive secretary of the Council and the registered allied health professional or his or her counsel:| (a) | the opening statements of the parties; | | (b) | the agreed statement of facts; | | (c) | the agreed bundle of documents or exhibits to be used at the inquiry; | | (d) | lists of witnesses whom the parties intend to call at the inquiry; | | (e) | copies of any other documents which are to be used at the inquiry. |
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(5) The Council’s solicitor may —| (a) | request to receive from the registered allied health professional or his or her counsel copies of any documents in the possession of the registered allied health professional or his or her counsel which are relevant to the matter before the Disciplinary Tribunal; or | | (b) | give notice to the registered allied health professional or his or her counsel to produce before the Disciplinary Tribunal any such documents. |
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| 8. A subpoena issued under section 51(5) of the Act must be in accordance with the form mentioned in Order 15, Rule 4(1) of the Rules of Court 2021, with any variations that the circumstances may require. |
| 9. The Disciplinary Tribunal may, in any particular case, waive all or any of the requirements in regulations 4(2)(d) and 7. |
| Council may consent to amendment, etc., of charges |
10.—(1) The Council must consider any representations received from a registered allied health professional or his or her counsel in respect of any charge framed against the registered allied health professional and may, if the Council considers it fair and expedient to do so, consent to —| (a) | the subsequent amendment, withdrawal, substitution or amalgamation by the Disciplinary Tribunal of one or more charges against the registered allied health professional; or | | (b) | the taking into consideration of one or more charges by the Disciplinary Tribunal for the purpose of exercising the powers of the Disciplinary Tribunal under section 53(2) of the Act. |
| (2) The Council may appoint a committee to exercise the powers and functions of the Council under paragraph (1). |
| (3) The number and terms of office of the members of a committee appointed under paragraph (2), and the number of those members necessary to form a quorum, are to be fixed by the Council at the time of the appointment of the committee. |
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11.—(1) At the inquiry, the case against the registered allied health professional may be presented by the Council’s solicitor.| (2) The registered allied health professional may appear in person or be represented by counsel. |
| (3) Where neither the registered allied health professional nor his or her counsel is present, the Disciplinary Tribunal may proceed with the inquiry if it is satisfied that regulation 4 has been complied with. |
(4) The Disciplinary Tribunal must adopt the following procedure for holding its inquiry, but may make any variations or modifications that it thinks fit in any particular case:| (a) | the charge or charges must first be read out to the registered allied health professional; | | (b) | the registered allied health professional or his or her counsel may object to any charge on a point of law, and if any such objection is upheld, no further proceedings are to be taken on the charge to which the objection relates; | | (c) | the Council’s solicitor must present the facts on which the complaint is based, and adduce evidence of the facts alleged in the charge or charges; | | (d) | the registered allied health professional or his or her counsel may adduce evidence to substantiate the registered allied health professional’s defence; | | (e) | both the Council’s solicitor and the registered allied health professional or his or her counsel may cross‑examine witnesses of the other party after the evidence‑in‑chief has been completed, and each party may re‑examine their witnesses after the cross‑examination; | | (f) | at the close of his or her case, the registered allied health professional or his or her counsel may address the Disciplinary Tribunal; | | (g) | the Council’s solicitor must make his or her closing address. |
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| (5) Where at any point in the proceedings the Disciplinary Tribunal determines that the evidence brought forward is insufficient or there is no evidence to substantiate any charge or all of the charges, the Disciplinary Tribunal must discontinue further proceedings on the charge or charges. |
| (6) If the Disciplinary Tribunal is satisfied that the registered allied health professional or his or her counsel is hampering or attempting to hamper the progress of the inquiry, the chairperson of the Disciplinary Tribunal must administer a warning to the registered allied health professional and, where appropriate, his or her counsel. |
| (7) If after such warning the Disciplinary Tribunal is satisfied that the warning is being disregarded, the Disciplinary Tribunal must make a written note of this and must proceed with and complete the inquiry in any manner which it thinks fit. |
| (8) The inquiry by the Disciplinary Tribunal must be held in private. |
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| Disciplinary Tribunal may alter charge or frame new charge |
12.—(1) A Disciplinary Tribunal may alter a charge or frame a new charge, whether in substitution for or in addition to an existing charge, at any time before it makes a finding under section 53 of the Act.| (2) An altered charge or a new charge must be read and explained to the registered allied health professional. |
| (3) If a charge is altered or a new charge is framed under paragraph (1), the Disciplinary Tribunal must immediately call on the registered allied health professional to enter his or her plea and to state whether he or she is ready for the inquiry to proceed on the altered or new charge. |
| (4) If the registered allied health professional declares that he or she is not ready for the inquiry to proceed on the altered or new charge, the Disciplinary Tribunal must duly consider any reason he or she gives. |
| (5) Despite paragraph (4), if the Disciplinary Tribunal thinks that proceeding immediately with the inquiry is unlikely to prejudice the registered allied health professional’s defence or the conduct of the case by the Council’s solicitor, then the Disciplinary Tribunal may proceed with the inquiry. |
| (6) If, after considering any reason given by the registered allied health professional under paragraph (4), the Disciplinary Tribunal thinks that proceeding immediately with the inquiry is likely to prejudice the registered allied health professional’s defence or the conduct of the case by the Council’s solicitor, then the Disciplinary Tribunal may direct a new inquiry or adjourn the inquiry for as long as it thinks necessary. |
| (7) If a charge is altered or a new charge is framed by the Disciplinary Tribunal after the start of an inquiry, the Council’s solicitor and the registered allied health professional must, on application to the Disciplinary Tribunal by either party, be allowed to recall or re‑summon and examine any witness who may have been examined, with respect to the altered or new charge only, unless the Disciplinary Tribunal thinks that the application is frivolous or vexatious, or is otherwise an abuse of process. |
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| Joining of similar disciplinary offences and inquiry for more than one disciplinary offence |
13.—(1) When a registered allied health professional is alleged to have committed 2 or more disciplinary offences, a single inquiry into any number of those disciplinary offences may be held if the disciplinary offences form or are part of a series of disciplinary offences of the same or a similar character.| (2) If, in one series of acts or omissions so connected as to form the same transaction, 2 or more disciplinary offences are committed by the same registered allied health professional, then a single inquiry into every such disciplinary offence may be held. |
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| Inquiries against 2 or more registered allied health professionals |
14. A joint inquiry or separate inquiries may be held against —| (a) | 2 or more registered allied health professionals alleged to have committed the same disciplinary offence in the same transaction; | | (b) | 2 or more registered allied health professionals alleged to have committed different disciplinary offences in the same transaction; | | (c) | 2 or more registered allied health professionals alleged to have committed 2 or more disciplinary offences which form or are part of a series of disciplinary offences of the same or a similar character; | | (d) | 2 or more registered allied health professionals alleged to have committed 2 or more disciplinary offences, if all of those offences arise from the same series of acts or omissions, whether or not they form the same transaction; or | | (e) | one or more registered allied health professionals alleged to have committed a disciplinary offence and one or more registered allied health professionals alleged to have abetted or attempted to commit that disciplinary offence. |
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| Single or joint inquiries with consent |
15.—(1) A Disciplinary Tribunal may inquire into 2 or more disciplinary offences together at a single inquiry or order a joint inquiry, even though it cannot do so by virtue of regulation 13 or 14, if —| (a) | in a case where a registered allied health professional is charged with 2 or more disciplinary offences — the Council and the registered allied health professional consent to have all the disciplinary offences dealt with at the same inquiry; or | | (b) | in a case where 2 or more registered allied health professionals are charged with separate disciplinary offences — the Council and all the registered allied health professionals consent to a joint inquiry. |
(2) Despite paragraph (1), the Disciplinary Tribunal must not hold a single or joint inquiry in relation to a registered allied health professional who had earlier given consent under that paragraph, if —| (a) | at the time when the consent was given — the registered allied health professional was not represented by counsel; and | | (b) | at the time of the inquiry — that registered allied health professional objects to the Disciplinary Tribunal holding the single or joint inquiry. |
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| Separate inquiry where registered allied health professional is prejudiced |
16. Despite any other provision in these Regulations, a Disciplinary Tribunal may order, before or at any stage of an inquiry in relation to a registered allied health professional, that a separate inquiry be held into one or more disciplinary offences alleged to have been committed by the registered allied health professional, if the Disciplinary Tribunal is of the view that the registered allied health professional may be prejudiced or embarrassed in his or her defence because —| (a) | a single inquiry is being held into more than one disciplinary offence under regulation 13 or 15(1)(a); or | | (b) | a joint inquiry is being held under regulation 14 or 15(1)(b) against the registered allied health professional together with one or more other registered allied health professionals. |
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| Findings of Disciplinary Tribunal |
17.—(1) After the closing address by the Council’s solicitor, the Disciplinary Tribunal must inform the parties of its findings in relation to the facts of the case either immediately or on a subsequent date of which reasonable notice must be given to the parties.| (2) If the Disciplinary Tribunal is satisfied that the charge or any of the charges made against the registered allied health professional have been proved, the Disciplinary Tribunal must invite the registered allied health professional or his or her counsel to address the Disciplinary Tribunal by way of mitigation and, after hearing the address (if any) proceed to exercise the powers under section 53(2) of the Act. |
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18.—(1) Where a Disciplinary Tribunal makes a finding under section 53(1) of the Act against a registered allied health professional in respect of a disciplinary offence, the Disciplinary Tribunal, in exercising its powers under section 53(2) of the Act, may, with the consent of the Council and the registered allied health professional, take into consideration any other outstanding disciplinary offences that the registered allied health professional admits to have committed.| (2) After the Disciplinary Tribunal has exercised its powers under section 53(2) of the Act, disciplinary action must not be taken against the registered allied health professional in respect of any such other disciplinary offences that the Disciplinary Tribunal had taken into consideration under this regulation unless the findings of the Disciplinary Tribunal in respect of the original disciplinary offence mentioned in paragraph (1) are set aside. |
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| Publication of outcome of inquiry |
| 19. The Disciplinary Tribunal may, in its discretion, publish an account of the inquiry and its findings and may cause the dean, the secretary or any other proper officer of any institution of higher learning from which the registered allied health professional had received his or her qualification to be informed of any removal of his or her name from any register. |
| Transcript of notes of inquiry |
| 20. Upon the application of any interested party and payment of the fee specified in the Second Schedule, the Council may furnish that party with a transcript of the inquiry or a copy of any document tendered at the inquiry. |
| Documents before Disciplinary Tribunal |
21.—(1) The Disciplinary Tribunal may, at any stage in the proceedings, refer to any written statement or reference material, even though its author or, in the case of reference material, an expert may not be called, if —| (a) | the registered allied health professional consents; or | | (b) | after consultation with the legal assessor, the Disciplinary Tribunal is satisfied that the reception of the written statement or reference material is desirable to enable the Disciplinary Tribunal to perform its duty or discharge its functions. |
| (2) A copy of the written statement or reference material mentioned in paragraph (1) must be made available to the registered allied health professional at the inquiry. |
(3) Where, even though any written statement or reference material has been referred to by the Disciplinary Tribunal under paragraph (1), the Disciplinary Tribunal is of the opinion that it should be supplemented by oral testimony —| (a) | the Disciplinary Tribunal may request that the author or, in the case of reference material, an expert be called as a witness and adjourn the hearing for the purpose; and | | (b) | on subsequently resuming the hearing, unless the author or expert (as the case may be) gives oral evidence, the Disciplinary Tribunal is entitled to disregard the written statement or reference material. |
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22.—(1) If, in any case where the Disciplinary Tribunal has adjourned the case or postponed its finding, it appears to the chairperson of the Disciplinary Tribunal that the Disciplinary Tribunal should resume consideration of the case, the chairperson of the Disciplinary Tribunal must notify the Council’s solicitor and the registered allied health professional or his or her counsel of the date, time and place where the Disciplinary Tribunal will meet to resume its consideration of the case.(2) Without limiting paragraph (1), where a Disciplinary Tribunal has imposed any condition or restriction under section 53(2)(d) or 54(2) of the Act and information is subsequently received that the registered allied health professional is in a material respect not complying with the condition or restriction —| (a) | the Disciplinary Tribunal or any Disciplinary Tribunal appointed in its place may meet to consider the case; and | | (b) | the executive secretary of the Council must notify the Council’s solicitor and the registered allied health professional or his or her counsel of the date, time and place of the meeting. |
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| (3) Regulations 5 to 21 apply, with the necessary modifications, to any meeting under paragraph (1) or (2). |
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