Consumer and board complaints – the New South Wales experience

In recent times it has been an increasing trend for patients of dental practices to file applications which can be broadly described as consumer claims with a consumer tribunal. Whilst the information provided in this article is specific to NSW it is important that all practitioners are aware of this increasing trend.

In NSW the relevant body is the Consumer Trader and Tenancy Tribunal (“CTTT”). The CTTT deals with consumer claims against business’ regarding the supply of goods or services and the bulk of these disputes are dealt with in the General Division of the CTTT.

Given that the Dental Board of NSW (“the Board”) does not have power to award compensation, save for a refund of treatment fees, many patients commence consumer claims in the CTTT in order to seek to recover additional compensation for future losses or general damages.

It has become increasingly commonplace for patients to lodge a complaint with the Board and make a concurrent application to the CTTT.

Consumer trader and tenancy tribunal

The CTTT has jurisdiction under the Consumer Claims Act 1998, to determine disputes about any goods or services, up to the value of $30,000.

The CTTT’s General Division (consumer claims) can hear and determine applications from consumers only. There is no automatic right of legal representation unless the application is for an amount greater than $10,000, or unless it can be submitted that the claim involves complex issues of law or fact. As a result, in our experience the CTTT can and does exercise its discretion to refuse applications made on behalf of dental practitioners, for them to be legally represented in this jurisdiction. Accordingly, both the applicant patient and the respondent dental practitioner to the consumer claim must appear in person. Failure to appear can result in adverse orders being made against the dental practitioner’s interests, which could include payment of the total value of the applicant’s claim, which would then be an enforceable judgment.

The provision of dental services for a fee, can be described to be a consumer claim in the General Division. The CTTT has jurisdiction to consider patient claims for such things as a refund of treatment fees, an order to replace or return goods (such as dentures), an order to pay for future treatment fees and an order to pay general damages for pain and suffering.

The CTTT is generally a no costs jurisdiction, which means that each party is to bear its own costs, except for the most exceptional circumstances. Such circumstances could include a vexatious claim or any undue delay in the speedy resolution of the claim.

Practical implications

Given the informality of the CTTT jurisdiction and the general absence of a right to legal representation, the process of resolving a complaint can be a difficult one which requires the dental practitioner to deal directly with the patient in circumstances where the patient practitioner relationship has broken down. In addition, the inability to have formal submissions made on behalf of a dental practitioner, by a legal representative, does make if difficult for any Tribunal Member hearing an application to make findings in relation to the standard of care provided by a dental practitioner to a patient.

Necessarily therefore, independent peer written opinion is important in considering whether the practitioner has discharged his or her duty of care. As patients rarely prepare for a hearing by obtaining a peer expert opinion, it is necessary for that opinion to be obtained by Guild Lawyers on behalf of the dental practitioner, in order to demonstrate to the CTTT that he or she has a defence to the patient’s application.

Often times, a Tribunal Member will encourage an applicant and respondent to conciliate a matter, with a view to avoiding a hearing. Again there are many practical difficulties in such a process given the breakdown in patient practitioner relationship. Nevertheless, it is a requirement of the CTTT process, to engage in informal discussions.

Should a Board decision be notified whilst proceedings are ongoing before the CTTT, it is our practice to inform the CTTT of such a decision (assuming it to be a positive). It is then a matter for the CTTT Tribunal Member to decide what weight to attribute to the outcome, given that the decision arises from another jurisdiction.

Comment

In order to manage applications in a timely manner, assistance should be obtained by the Advisory Services team of the NSW Branch of the Australian Dental Association and Meridian Lawyers. With the assistance of Meridian Lawyers and the Advisory Services team, attempts can be made to resolve a patient’s application at an early stage, with a view to avoiding the necessity of appearing at a conciliation or hearing.

Fiona Dransfield 
Special Counsel, Meridian Lawyers


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