NSW Court of Appeal decision affects a practitioner’s rights to seek a stay from NCAT

  • 7 Nov 2017

Yesterday the Court of Appeal handed down a decision (Medical Council of NSW v Lee [2017] NSWCA 282) which will limit a practitioner’s rights to seek a stay of any suspension decision made by their relevant registering Council pursuant to s150 of the National Law.

The decision dealt with The NSW Civil & Administrative Tribunal’s (NCAT) jurisdiction to grant a stay of the Medical Council of NSW decision to suspend a practitioner’s registration pursuant to s150 of the National Law in circumstances where that decision was being appealed pursuant to s159 of the National Law.

Paragraphs 112 and 113 of the judgment summarise the conclusions:

The absence of power in the Tribunal to stay a suspension decision made under s 150, except where the appeal is with respect to a point of law, does not mean that the suspension must remain in force pending determination of an appeal made by a medical practitioner. The issue is left to the Council to decide, either on an application for review (s 150A) or in the exercise of the Council’s power to end the suspension (s 150C). This reflects a legislative judgment that the Council is best placed to assess whether the interim measure of suspending the registration of the medical practitioner should remain in place, having regard to the paramount consideration of protecting the health and safety of the public.

On this construction of s 161B, the only case in which the Tribunal has power to stay a suspension decision is where the medical practitioner has appealed against the suspension decision with respect to a point of law. Such an appeal must be determined by the Tribunal constituted by a Supreme or District Court Judge. Parliament has taken the view that where the appeal turns on a point of law, the Tribunal should be empowered to grant a stay pending determination of the appeal even if the Council has not exercised its power to terminate or vary the suspension. 

The upshot of this decision is that where a health practitioner has their registration suspended pursuant to s150 of the National Law, unless they have an appeal with respect to a point of law, any application for a stay of the decision pending the outcome of an appeal to NCAT pursuant to s 159 of the National Law, must be made to the relevant registering Council and not NCAT. The interpretation is based upon an assessment of the legislative intent that the registering Councils and not NCAT are the preferred body to make such decisions relating to whether interim suspension orders should remain in place.

Post by Karen Kumar

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