A recent decision in the Queensland Civil and Administrative Tribunal (the Tribunal) reconfirmed that an assessor’s expert opinion will not be excluded from evidence on the ground of perceived or actual bias. This decision reiterates the importance for Boards, health practitioners and their lawyers to consider whether issues of bias should be addressed at a panel hearing rather than at a Tribunal hearing.

The Health Practitioner Regulation National Law requires that if a Health Practitioner Board reasonably believes that the way that a registered health practitioner practices is or may be unsatisfactory, or the registered health practitioner’s professional conduct is or may be unsatisfactory the Board may establish a performance and professional standards panel to review the practitioner.1

The panel carries out its function by relying upon the expertise of an assessor who will critique the professional conduct of the health practitioner.2 It is an inquisitorial process and is quite different to the adversarial process in a court or tribunal. Whilst the principles of the adversarial system rely upon at least two parties cross-examining each other’s witnesses and then putting their respective cases to an independent arbiter, in the inquisitorial process, whilst the principles of natural justice must be observed, the panel has the function of an inquirer. The inquirer is freed from the constraints of procedure and the rules of evidence that exist in the adversarial process. An inquisitorial health panel must be conducted fairly though, and observe the rules of natural justice, lest the general public lose confidence in its decisions to impose sanctions upon some health practitioners and not upon others.

In the matter before QCAT an allegation was made that the Board’s expert assessor was biased against the health practitioner because of three previous adverse reports that the assessor had written about the practitioner. The practitioner sought that QCAT exclude the assessor’s evidence on that basis. The Tribunal ruled that whilst it had the discretionary power to exclude the assessor’s evidence, the law with respect to bias of experts was well established in Australia, as issues of bias by an expert will always go to weight, and not admissibility.3 However, in oral submissions the point was raised that in the inquisitorial environment of a panel inquiry any perception of bias that a fair minded observer might reasonably apprehend towards the assessor’s report will necessarily infect the impartiality of the panel’s decision. If the panel pushed on a made a decision then there would be legal grounds for an appeal, and without the expert assessor’s report the panel may not have a case.

Given that both the panel and the health practitioner, who is the subject of the hearing, may elect to have the tribunal at any stage of the panel proceedings,4 the following advantages and red before making the election.

A Panel Hearing

  • The matter is likely to be determined quite quickly and will be relatively less expensive, if lawyers are engaged;
  • It is an inquisitorial hearing where the assessor sits with the Panel;
  • Allegations of bias must be considered by the Panel;
  • An adverse finding by the Panel in circumstances where an allegation of bias was advanced provides grounds for Judicial Review;
  • The health practitioner has a right to appeal the final decision in any event to the responsible tribunal pursuant to s 199(1)(i) & (k) of the National Law.

A Tribunal Hearing

  • It is an adversarial hearing where the assessor is called as an expert witness to give an opinion;
  • Any bias (perceived or actual) by the assessor towards the health practitioner can adversely affect the weight of the assessor’s evidence;
  • The expertise of the assessor may be challenged and excluded if found to be wanting;
  • There may be significant delay in deciding the matter, which may or may not be of commercial advantage to the health practitioner;
  • A competing expert can be called to counter the opinion of the assessor;
  • The decision is can only be appealed on issues of law.