Schedule 5 to the Principal Act is repealed and the following Schedule is substituted:

SCHEDULE 5 - Provision with respect to powers and procedures of Tribunal

Section 50(12)

PART 1 - General procedures

1.    Main procedural obligations, &c.

The Tribunal –

(a) must conduct its proceedings with as little formality and with as much expedition as a proper consideration of the matter before it permits; and

(b) is not bound by the rules of evidence but may inform itself on any matter in any way it considers appropriate; and

(c) must observe the rules of natural justice.

2.    Proceedings to be open to public

(1) Except as provided by this clause, the proceedings of the Tribunal are to be open to the public.

(2) During any proceedings the Tribunal may, on the application of a party to the proceedings or on its own motion, do either or both of the following if it considers that there are compelling grounds to do so:

(a) make an order excluding any person from the proceedings;

(b) make an order prohibiting the reporting or other disclosure of all or any of the proceedings or prohibiting the reporting or other disclosure of particular information in respect of the proceedings.

(3) Without limiting the range of grounds that may be relevant for the purposes of subclause (2) , the Tribunal may exercise its power under that subclause if –

(a) it is dealing with privileged information or information that has been communicated to the Council or the Tribunal in confidence; or

(b) it is dealing with information concerning the personal affairs, finances or business arrangements of a registered medical practitioner; or

(c) the disclosure of the proceedings or the information may be unfairly prejudicial to the reputation of a registered medical practitioner or any other person.

(4) Nothing in this clause is to be taken as preventing the Tribunal from –

(a) meeting in camera for the purpose of preparing for any proceedings or any stage of any proceedings; or

(b) meeting in camera for the purposes of reaching a finding on any matter in the course of, or at the conclusion of, any proceedings.

3.    Representation, &c.

(1) A defendant in a formal inquiry is entitled to be represented in that formal inquiry by a legal practitioner or any other person.

(2) The Council, at its own expense, may appoint a legal practitioner to help the Tribunal conduct a formal inquiry.

(3) The Secretary may –

(a) become a party to a formal inquiry; and

(b) be represented in that formal inquiry by an employee of the Department.

4.    Convening the Tribunal

The Tribunal, as constituted for any formal inquiry, may be convened by –

(a) the chairperson; or

(b) a permanent member and a special member; or

(c) 2 special members.

5.    Constitution of Tribunal and effect of vacancies

(1) Subject to this clause, the Tribunal is not competent to take any action in a formal inquiry unless each of the 2 permanent members, and each of the 3 special members appointed for that inquiry, is present.

(2) If one of the members, other than the chairperson, constituting the Tribunal for a formal inquiry vacates office for any reason before that inquiry is completed, the inquiry may be continued and completed by the remaining 4 members regardless of whether, in the case of a vacancy in the office referred to in section 50(2)(b) , any other person is appointed to the vacant office.

(3) If more than one of the members constituting the Tribunal for a formal inquiry vacates office for any reason before that inquiry is completed, the inquiry is terminated.

(4) If a formal inquiry is terminated by virtue of subclause (3) , the Tribunal may be reconstituted for the purposes of conducting a new formal inquiry on the same matter.

(5) For the purposes of this clause, a formal inquiry is taken to have been completed once the Tribunal has taken an action under section 52 .

6.    Chairperson

The chairperson is to preside over all proceedings of the Tribunal.

7.    Minutes

The Tribunal is to keep –

(a) accurate minutes of its meetings; and

(b) a verbatim record of each hearing held in the course of a formal inquiry.

PART 2 - Facilitation of proceedings

8.    Practice directions

(1) The chairperson may –

(a) issue such practice directions in relation to the practice and procedure of the Tribunal as the chairperson thinks fit; and

(b) vary or revoke any such practice directions; and

(c) publish any such practice directions as the chairperson thinks fit.

(2) The practice and procedure of the Tribunal is to be in accordance with the practice directions from time to time in force unless the provisions of any Act or the provisions of any rules or other statutory instruments made under an Act provide otherwise.

9.    Specific determinations and directions

(1) Before the first hearing is held in a formal inquiry, the chairperson may –

(a) determine any question of law or procedure that is expected to arise later in the proceedings; and

(b) determine any other question that the chairperson considers necessary or convenient to determine in order to ensure that the remainder of the proceedings will be conducted fairly and expeditiously; and

(c) give such directions, consistent with the practice directions issued under clause 8 , as the chairperson thinks fit for the purposes of resolving any issue or matter that he or she considers necessary or convenient to resolve for the remainder of the proceedings.

(2) At any time during a formal inquiry, the Tribunal may –

(a) determine any question of law or procedure that is expected to arise later in the proceedings; and

(b) determine any other question that it considers necessary or convenient to determine in order to ensure that the remainder of the proceedings will be conducted fairly and expeditiously; and

(c) give such directions, consistent with the practice directions issued under clause 8 , as it thinks fit for the purposes of resolving any issue or matter that it considers necessary or convenient to resolve for the remainder of the proceedings.

PART 3 - Votes and decisions

10.    Voting

(1) Questions arising for determination by the Tribunal are to be determined by a majority of votes of the members present and voting.

(2) In the event of an equality of votes on a question arising for determination by the Tribunal, the question stands adjourned until it is next convened.

(3) The vote of a special member is equal to the vote of a permanent member.

11.    Announcement of decisions

(1) At the conclusion of a formal inquiry, the Tribunal may announce its decision.

(2) The announcement may be made by –

(a) the Tribunal sitting together; or

(b) the chairperson sitting alone.

(3) An announcement is to be in addition to, and not in substitution for, a notice under section 54 .

12.    Tribunal may take other matters into account in making its decision

(1) In making its decision in a formal inquiry, the Tribunal may take into account any evidence that has been given in the formal inquiry concerning any matter that the Tribunal is satisfied could constitute grounds for a further complaint against the defendant.

(2) Subclause (1) has effect whether or not any person has made a complaint about the matter that the Tribunal takes into account.

(3) Subclause (1) does not prevent –

(a) a person from making a complaint about the matter that the Tribunal takes into account; or

(b) the Council from taking action under section 48A about the matter that the Tribunal takes into account.

PART 4 - Powers

13.    General powers

The Tribunal may –

(a) by summons, require any person to appear before it to give evidence or to produce any document or other thing specified in the summons; and

(b) require any person appearing before it to produce any document; and

(c) require any person appearing before it to give evidence on oath or affirmation; and

(d) require any person appearing before it to answer questions; and

(e) proceed with and determine any proceedings notwithstanding the absence of a person who has been summonsed to appear; and

(f) adjourn any proceedings from time to time and place to place.

14.    Power to require medical examinations

(1) In this clause –

medical examination includes an examination of the physical, psychological and mental capacities of a person.

(2) The Tribunal may, by notice, require the defendant in a formal inquiry to have a medical examination if the Tribunal reasonably considers that the defendant's medical condition may be a relevant consideration in that formal inquiry.

(3) Unless the Tribunal under section 53 orders otherwise, the Council must pay for the medical examination.

(4) The notice requiring the medical examination is to specify –

(a) the name of the registered medical practitioner or other health care professional who is to carry out the examination; and

(b) the date, time and place of the examination.

(5) The time and place specified for the medical examination must be reasonable.

(6) The medical practitioner who carries out the medical examination is to give a written report of the results of the examination to –

(a) the Tribunal; and

(b) the defendant or, if the Tribunal so directs, a representative of the defendant nominated by the Tribunal.

(7) The Tribunal is not to give a direction under subclause (6)(b) unless it is reasonably satisfied that it may be harmful to or otherwise not in the best interests of the defendant to be given the report.

(8) A person nominated under subclause (6)(b) is to be someone who, in the reasonable opinion of the Tribunal, best represents or is capable of best representing the interests of the defendant for the purposes of the formal inquiry.