Qasim v Health Care Complaints Commission

1. [1]

   McCOLL JA: I agree with Meagher JA’s reasons and the orders his Honour proposes.

2. [2]

   MEAGHER JA: The appellant is a qualified endocrinologist and consultant physician. On 22 December 2010, pursuant to s 150 of the Health Practitioner Regulation National Law (NSW) (National Law), her registration as a health practitioner was suspended after a hearing of the Medical Council of New South Wales (the Medical Council). That decision followed the receipt by the Medical Council of a letter from five fellow endocrinologists dated 27 October 2010, which raised concerns about Dr Qasim's practice of endocrinology. Also in December 2010 the subject matter of those concerns was referred by the Medical Council to the respondent Commission for investigation: National Law, s 150D. After consultation between the Medical Council and the Commission, the complaints against Dr Qasim were referred to the Medical Tribunal of New South Wales: National Law, ss 145A, 145B. In December 2012 an amended notice of complaint was filed by the Commission in the Medical Tribunal. That Notice contained five complaints (as summarised in [24] below).

3. [3]

   Those complaints were heard by the Occupational Division of the New South Wales Civil and Administrative Tribunal (the Tribunal) in March 2014. On 2 May 2014 the Tribunal delivered its decision and made orders that Dr Qasim's registration as a health practitioner be cancelled and that she not be permitted to make an application for re-registration or for review of that order for a period of four years from that date: Health Care Complaints Commission v Qasim [2014] NSWCATOD 42. This appeal from those orders is brought under cll 29(2)(b) and 29(4)(b) of Sch 5, Pt 6 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act). The appellant’s right of appeal is limited to questions of law and leave has not been sought to raise any other grounds. The grounds relied on are contained in the amended notice of appeal filed on 27 May 2015.

4. [4]

   The Tribunal also assessed the Commission’s costs of the proceedings before it at $70,000 and ordered that Dr Qasim pay two-tenths of those costs, being $14,000. In doing so the Tribunal rejected the Commission’s application that Dr Qasim pay its costs of the hearing: [2014] NSWCATOD 42 at [180]-[182]. The Commission seeks leave to appeal from that costs decision under cl 29(6)(c) of Sch 5, Pt 6 of the CAT Act.

5. [5]

   Notwithstanding that it is a lengthy exercise, it is convenient at this point to summarise the background facts, the relevant legislation, the nature of the complaints and the way in which they were dealt with by the Tribunal. I will then deal with the grounds of appeal, addressing first those which concern the complaints and findings on which the Tribunal’s final orders were based.

Background facts

1. [6]

   Dr Qasim graduated in 1986 with the degrees of Bachelor of Medicine and Bachelor of Surgery from the University of New South Wales. In December 1985 she was first registered as a medical practitioner in New South Wales. Dr Qasim obtained her Fellowship of the College of Physicians in endocrinology in 1996. Prior to the cancellation of her registration, she was registered nationally in the general and specialist (endocrinology) categories: National Law, ss 269, 270.

2. [7]

   In the period after 1997 Dr Qasim worked in practices in Kogarah and Kirrawee, suburbs of Sydney. Between December 2009 and September 2010 she practised from rooms at the Forster Specialist Medical Centre at Forster. She set up that practice to be closer to patients from the Port Macquarie, Kempsey and Taree areas.

3. [8]

   The October 2010 letter, which led to the proceedings before the Medical Council in December 2010, was written by five endocrinologists working in the Department of Endocrinology at the John Hunter Hospital. It raised particular concerns about the standard of medical care provided by Dr Qasim. Those concerns were based on correspondence from her to referring general practitioners or patients sent between August 2009 and August 2010. The subject matter of that correspondence was described in the letter as “her investigations and management of a few common clinical problems faced daily in general endocrine practice”. The principal signatory of the letter was Professor Roger Smith, a Professor of Endocrinology and the Head of the Department of Endocrinology.

4. [9]

   That letter was referred to Dr Qasim. In addition to addressing the concerns said to arise from the correspondence disclosed, Dr Qasim’s response, dated 2 December 2010, made several serious allegations against various people. They included that Ms Dinkelman, the receptionist at Forster Specialist Medical Centre who typed letters dictated by Dr Qasim, had substantially altered those letters from the form in which they were dictated and, on occasions, forged her signature; that Dr Newman, a practitioner at another practice in Forster, assisted by Ms Dinkelman, obtained unauthorised access to Dr Qasim’s patient files and removed, without her knowledge and consent, “hundreds” of them between September and October 2010; that Dr Newman selectively chose a few of those files and passed them on to Professor Smith; and that the Professor used those files as the basis for his complaint which was motivated, at least in part, by “professional jealousy”. The Tribunal dealt with and rejected those allegations (at [93]-[107]), concluding at [111] that there “was no conspiracy of any type”.

5. [10]

   Not all of the complaints dealt with by the Tribunal concerned letters written by Dr Qasim. Complaints one, two and three were directed to that conduct. By complaints one and two, each of the communications to referring practitioners was said to constitute unsatisfactory professional conduct and, either considered together or separately, they were alleged by complaint three to constitute professional misconduct. Complaints four and five alleged that Dr Qasim suffered from a paranoid or delusional disorder which impaired her mental capacity to practise as a health practitioner. Dr Samuels, a forensic psychiatrist qualified by the respondent, gave opinion evidence to that effect. His opinion was based in part on an assumption that Dr Qasim had a history of conflicts with people involving prolonged interactions with the legal system and disruptions to her career. Much of the evidence as to those conflicts concerned Dr Qasim’s interactions with people who lived in the same apartment building as she did in Randwick.

6. [11]

   At the time of the hearing before the Tribunal, Dr Qasim continued to live in that building which contained four apartments. Dr Qasim owned apartments 3 and 4 on the top level. Apartments 1 and 2 on the ground level were owned by others. Before April 2007 apartment 1 was owned by a Mr Igra. On 30 July 2004 he wrote to the NSW Medical Board expressing concern about Dr Qasim's behaviour over the previous two and a half years. Mr Igra sold that apartment in April 2007 to Dr Miller who, on 8 February 2010 wrote to the NSW Medical Board in relation to Dr Qasim's behaviour over the previous three years. The evidence before the Tribunal included letters written by Dr Qasim to Dr Miller, one of which (received in April 2008) commenced:

7. [12]

   Mr Sidwell took a two year lease of apartment 1 from Dr Miller in December 2008. In the first month of their tenancy and in November 2009 Mr Sidwell and his wife sent emails to the managing agent of that property seeking to terminate their lease for reason of Dr Qasim’s conduct. That conduct included the sending of the following handwritten note dated 19 December 2008, which was shortly after they had moved in:

8. [13]

   Dr Sutherland, a lecturer in physics at the University of Western Sydney, purchased apartment 2 in December 1999 and lived there until early 2007. He wrote letters to the Commission dated 27 September 2005 and 26 February 2006 complaining of Dr Qasim’s behaviour from about 2001. In September 2005 Dr Qasim swore a complaint in support of an apprehended violence order against Mrs Sutherland. In that complaint Dr Qasim asserted that:

Relevant Statutory Provisions

1. [14]

   Although the complaints against Dr Qasim were referred to the Medical Tribunal, they were not heard before 1 January 2014 when the NSW Civil and Administrative Tribunal was established. On its establishment, the Medical Tribunal was abolished: CAT Act, s 7 and Sch 1, cll 2, 3. The transitional provisions of the CAT Act provided that “unheard proceedings” in the Medical Tribunal were taken on and from 1 January 2014, to have been duly commenced in the Tribunal and were to be heard and determined by the Tribunal: CAT Act, Sch 1, cl 7(1).

2. [15]

   Clause 7(3) of Sch 1 to the CAT Act had the effect that in determining the complaint the Tribunal had and could exercise all of the functions which the Medical Tribunal previously had and that the applicable version of the National Law was that which would have applied if the amending legislation had not been enacted: see generally Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63 at [34]-[43] (Sackville AJA, Basten and Ward JJA agreeing). As such, the version of the National Law applicable to the Tribunal’s determination of the complainant was that in force at 31 December 2013 (the applicable National Law).

3. [16]

   By s 144 of the applicable National Law, the complaints that could be made about a registered health practitioner included the following:

4. [17]

   Sections 139B and 139E respectively defined "unsatisfactory professional conduct" and "professional misconduct".

5. [18]

   Section 139B included the following:

6. [19]

   In relation to professional misconduct, s 139E provided:

7. [20]

   Section 139 addressed a person’s competence to practise a health profession:

8. [21]

   Finally, s 5 defined “impairment” in relation to a person to mean:

9. [22]

   The Tribunal’s disciplinary powers were conferred by Pt 8, Div 3, Subdiv 6 of the applicable National Law. By s 149 the Tribunal could exercise those powers in relation to a registered health practitioner if “it [found] the subject-matter of a complaint against the practitioner … to have been proved”.

10. [23]

    The power exercised by the Tribunal in this case was that to suspend or cancel registration under s 149C, which provided:

The Amended Notice of Complaint

1. [24]

   The five complaints made were in the following terms:

The decision of the Tribunal

1. [25]

   The Tribunal found that Dr Qasim had written each of the letters relied on in the particulars for complaints one and two: [2014] NSWCATOD 42 at [111]. In doing so it relied on the evidence of an independent expert, Professor Proietto, and of Professor Smith on the question whether statements made in the correspondence showed that the care exercised by Dr Qasim fell below the standard reasonably expected of a practitioner of an equivalent level of training and experience (complaint one), and otherwise contained comments which were inappropriate and unprofessional and for that reason fell below the relevant standard of care (complaint two). The Tribunal concluded at [114]:

2. [26]

   The Tribunal went on to consider in more detail the expert evidence with respect to each of the letters particularised in relation to complaint one: [115]-[125]. Having done so, it then referred (at [126]) to what were described as "substantial concerns about the general nature of [Dr Qasim’s] reports to general practitioners". With respect to the conduct particularised for complaints one and two, those concerns included:

3. [27]

   The Tribunal then concluded, without more, at [127]:

4. [28]

   When addressing complaint five the Tribunal recorded at [168] that its “findings” included (following closely the language of s 139E(a) and (b)):

5. [29]

   In doing so the Tribunal did not expressly identify any particular conduct which was considered to be of a sufficiently serious nature to justify suspension or cancellation. Nor did it identify or explain the instances of unsatisfactory professional conduct which, when considered together, amounted to conduct of a sufficiently serious nature to justify suspension or cancellation.

6. [30]

   Turning to the impairment alleged by complaint four, the Tribunal addressed the evidence of Dr Samuels; Dr Kwan, Dr Qasim’s treating general practitioner; and Dr Smith, her treating psychiatrist. The Tribunal preferred the evidence of Dr Samuels to that of Dr Smith and concluded that Dr Qasim suffered from a serious psychiatric disorder, namely a “paranoid disorder somewhere along the spectrum from personality disorder to paranoid schizophrenia”, that was causing “impairment in [her] interactions with patients, colleagues and with the community in general”: [138], [164].

7. [31]

   The particulars to complaint five – that the practitioner did not have sufficient mental capacity or knowledge and skill to practise the profession – relied upon the fact of that serious psychiatric disorder and also upon the conduct that was the subject of complaints one and two as demonstrating that Dr Qasim did not have sufficient knowledge and skill to continue in practice. The Tribunal accepted the Commission’s case put on each of those "separate and distinct bases”: [167]. It found that Dr Qasim suffered from an impairment which interfered with her “judgment, communication skills and clinical ability” and rendered her not competent to practise: [170], [175]. It also found that the conduct which was the subject of complaints one and two showed that she did not have “sufficient knowledge and skill to practise”: [168].

8. [32]

   Notwithstanding the findings described above, the Tribunal’s order that Dr Qasim’s registration be cancelled was only made on the basis that she was not competent to practise because of the impairment caused by her paranoid disorder: applicable National Law, s 149C(1)(a). The order was not made on the basis that she was not competent because of a lack of sufficient knowledge and skill. Nor was it made on the basis of the Tribunal’s finding of professional misconduct: applicable National Law, s 149C(1)(b).

9. [33]

   Had complaints one, two and three been the only complaints supported by evidence and the subject of adverse findings by the Tribunal, the Tribunal “would have made an order that [Dr Qasim’s] further practice of medicine as an endocrinologist … [be] subject to further training, supervision and other necessary orders": [168].

Grounds of Appeal (as numbered in the Amended Notice of Appeal)

1. [34]

   Grounds 2, 3, 4 and 6 are directed to the Tribunal’s findings as to complaints one, two and three. By ground 2 it is argued that part of Dr Qasim’s conduct particularised for complaint one was not capable as a matter of law of constituting unsatisfactory professional conduct under s 139B(1)(a), it not being contended that the conduct satisfied any other subsection. Grounds 3 and 4 challenge the adequacy of the Tribunal’s reasons (see [27]-[29] above) for its conclusions that the conduct said to constitute unsatisfactory professional conduct, either considered separately or together, was sufficiently serious to justify suspension or cancellation of Dr Qasim’s registration, so as to amount to professional misconduct. Finally, ground 6 asserts that the Tribunal erred in being satisfied that any of the conduct in relation to complaints one, two and three constituted a proper basis for cancelling Dr Qasim’s registration to practise.

2. [35]

   Grounds 7 and 8 address the Tribunal's findings as to the practitioner’s mental disorder and impairment. Ground 7, as argued, is that the Tribunal erred in law in four respects in reaching its finding that Dr Qasim suffered from a psychiatric disorder. They are: first, that the appellant was denied procedural fairness because the reason for rejecting Dr Smith's evidence was not explored with him in cross-examination; secondly, that the Tribunal’s reasons for rejecting Dr Smith’s evidence - that Dr Qasim did not suffer from any psychiatric disorder - were not logically capable of supporting that conclusion; thirdly, that the Tribunal’s finding that Dr Qasim suffered from a paranoid disorder was not reasonably open in the absence of any evidence of a diagnosis of a recognised psychiatric disorder; and fourthly, that critical factual matters assumed by Dr Samuels in expressing his opinion had not been proved. Ground 8, which in terms does not raise an error of law, alleges that the Tribunal erred in concluding that Dr Qasim's paranoid disorder affected her capacity to practise medicine.

3. [36]

   The remaining grounds 9 and 10 challenge the form of the orders made by the Tribunal. Ground 9 contends that a mandatory relevant consideration, to which the Tribunal failed to have regard when ordering that Dr Qasim not be permitted to make an application for re-registration for a period of four years, was that her registration had been suspended from December 2010 to May 2014. Ground 10 is that the order that Dr Qasim’s name be removed from the register of medical practitioners was manifestly excessive. As formulated, it also does not raise a question of law.

4. [37]

   It is convenient first to address grounds 7 and 8 because they are the grounds directed to the basis upon which the Tribunal exercised its power under s 149C(1)(a). If those grounds are dismissed the only remaining grounds which challenge the orders made by the Tribunal are grounds 9 and 10, which challenge the Tribunal’s exercise of the power as distinct from the existence of that power, in each case as sustained by the Tribunal’s conclusion that Dr Qasim is not competent to practise because of her psychiatric disorder and its effect on her mental capacity.

The challenges to the finding as to impairment by reason of a mental disorder (ground 7)

1. [38]

   I have identified in [35] above the four arguments made in support of ground 7. It is convenient first to address the arguments which relate to the Tribunal’s preference for the evidence of Dr Samuels over that of Dr Smith.

2. [39]

   Having referred to the evidence of Dr Kwan, Dr Qasim’s treating general practitioner, and Dr Smith, her treating psychiatrist, the Tribunal at [162]-[164] set out its reasons for preferring the evidence of Dr Samuels:

3. [40]

   It is submitted for the appellant that “the” reason given by the Tribunal for preferring Dr Samuels’ evidence was that he was independent, whereas Dr Smith was a treating psychiatrist “trying to carry out a perceived ethical duty of assisting his patient”, and that reason was not a logical one. It is also submitted that if Dr Smith’s evidence was to be disregarded for that reason, his lack of independence should have been raised with him in cross-examination for comment and response.

4. [41]

   The first of these submissions does not accurately or sufficiently reflect the Tribunal’s reasons for preferring the evidence of Dr Samuels. The Tribunal’s statement that Dr Smith “was viewed as a treating psychiatrist trying to carry out a perceived ethical duty of assisting his patient” describes an overall assessment of the evidence of Dr Smith. In reaching its conclusion to prefer the evidence of Dr Samuels, the Tribunal stated that it also took into account the behaviour of Dr Qasim appearing for herself during the hearing. As a Tribunal with specialist members, it was entitled to draw upon their expertise in assessing whether Dr Qasim’s conduct and demeanour during the proceeding was consistent with Dr Samuels’ opinion: see Re Anderson & Medical Practitioners Act (1967) 85 WN (Pt 1) (NSW) 558 at 570 (Sugerman JA) and Kalil v Bray [1977] 1 NSWLR 256 at 260-261 (Street CJ). There was no denial of procedural fairness in that respect because the appellant was given notice at the commencement of the hearing that the Tribunal might do so.

5. [42]

   Dr Smith’s evidence, as the following summary shows, provided an ample basis for the Tribunal to form the view that in giving his evidence he continued to perceive his duty to be to assist his patient and that he sought to carry out that duty.

6. [43]

   The cross-examiner took Dr Smith through the period of his treatment of Dr Qasim, which commenced in May 2012. In his letter dated 25 May 2012, Dr Smith wrote to Dr Kwan stating that he had advised Dr Qasim “that I would be pleased to review the documentation on file and assist her in hopefully overturning the events that have occurred”. In November 2012, Dr Smith wrote to the solicitors Slater & Gordon encouraging their assistance in resolving Dr Qasim’s ongoing dispute with the Medical Council saying that assistance would “be much appreciated and undoubtedly would assist Dr Qasim in re-engaging in productive work”.

7. [44]

   Dr Smith’s reports produced in relation to the proceedings before the Tribunal are dated 6 February 2013 and 11 September 2013. In each he states that he found no clinical evidence that Dr Qasim suffers from a formal psychiatric disorder (such as paranoid personality disorder, paranoid schizophrenia or a persecutory type of delusional disorder) as defined in the Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013) produced by the American Psychiatric Association (DSM). He disagrees with Dr Samuels’ opinion that Dr Qasim suffers from a paranoid condition and notes that Dr Samuels has not defined what he means by his diagnosis, which could loosely refer to any of a paranoid personality disorder, a delusional disorder or paranoid schizophrenia.

8. [45]

   The voluminous materials provided to Dr Smith for the purpose of preparing his report included Dr Qasim’s response dated 2 December 2010 to the complaints raised by Professor Smith’s letter. That response included the following statements:

9. [46]

   In cross-examination Dr Smith accepted that this letter was “inappropriate” and involved “poor judgement” but added that it “doesn’t equate necessarily to a paranoid schizophrenic disorder” [Emphasis added]. He agreed that Dr Qasim was expressing her views in an inflated manner, but not that there were numerous instances of grandiosity in the letter. He accepted that the suggestion that Mr Igra was a relative of Ms Dinkelman was plainly a wrongly held belief but would not accept that it suggested a persecutory belief system. When pressed, he accepted that Dr Qasim had a tendency to be suspicious by nature and when confronted with her accusations of misconduct against Dr Newman and Professor Smith, in relation to the theft of files, he accepted that Dr Qasim was making allegations but queried “is that delusional, not necessarily so is my point to you” [Emphasis added]. When confronted with the position, as was found by the Tribunal, that these allegations were unfounded, Dr Smith replied:

10. [47]

    Dr Smith was also questioned about statements made by Dr Qasim that suggested the Medical Council was assisting the residents of her Randwick apartment building and that there was a “conspiracy between the Medical Council, HCCC, Ms Dinkelman and other practitioners in regard to unauthorised access to [her] clinical records [which had] been proven to be true”. Dr Smith agreed that the suggested linkages between these disparate people and the allegation of a conspiracy between them was of concern. However he noted:

11. [48]

    When pressed by the cross-examiner as to whether the various matters to which he was referred raised serious questions about Dr Qasim’s insight and paranoia, Dr Smith responded:

12. [49]

    It was in this context that, towards the very end of his evidence, Dr Smith was asked the following questions by the specialist psychiatrist member of the Tribunal (Dr Anderson):

13. [50]

    A question to be decided by the Tribunal was whether, as alleged by the Commission, Dr Qasim suffered from a paranoid disorder. The Tribunal found that she did, relying upon the evidence of Dr Samuels. Whether that evidence was probative of that fact and whether the disorder about which Dr Samuels gave evidence was a “mental impairment, disability, condition or disorder” within the definition of “impairment”, are questions raised by the third of the arguments advanced in support of ground 7 (see [35] above). Those questions are dealt with below.

14. [51]

    The first and second of the arguments described in [35] above proceed from the central proposition that Dr Smith’s evidence was “rejected for a single reason, perceived lack of independence” (tcpt 16/06/15, p 39.7). As I have already observed, that proposition does not accurately reflect the Tribunal’s stated reasoning process. In addressing the question whether Dr Qasim suffered from a paranoid disorder, the Tribunal gave three reasons for preferring the evidence of Dr Samuels and concluding that she did. The first was that it “accepted” his opinions as correct. That conclusion, at least in part, necessarily involved the members of the Tribunal drawing upon their own specialist knowledge and experience. One of those members was a qualified psychiatrist. Another was a qualified endocrinologist. As explained at [41] above, the Tribunal was entitled to employ its expertise in deciding which expert evidence to accept on the basis of the factual material before it. The second reason given was that the Tribunal considered Dr Qasim’s conduct during the nine days of the hearing to support the opinion expressed by Dr Samuels. Again that conclusion was reached with the benefit of the specialist knowledge and experience of the Tribunal’s members. The third was that Dr Samuels’ evidence was to be preferred to that of Dr Smith because Dr Samuels was an independent expert, whereas Dr Smith was “viewed as a treating psychiatrist trying to carry out a perceived ethical duty of assisting his patient”: [162]. The Tribunal refers to the evidence on which that assessment was based at [151]-[161].

15. [52]

    That assessment does not fix upon any perceived lack of independence. The essence of it is that Dr Smith’s evidence was given from the perspective of a treating psychiatrist who was seeking to assist his patient or advocate her position. As the course of his evidence summarised above shows, when confronted with behaviour or beliefs of Dr Qasim which raised serious questions as to whether she suffered from a paranoid disorder, Dr Smith’s response tended to be to require that he be persuaded of such a diagnosis rather than accepting that he should explore that possibility further by reference to the materials provided to him. An example of this is evident in his response to the statements made by Dr Qasim as to there being a conspiracy between the Medical Council, the HCCC, Ms Dinkelman and others in relation to access to her clinical records (see [47] above).

16. [53]

    Turning to the first argument, the rule in Browne v Dunn (1893) 6 R 67 ordinarily requires, where the evidence of a witness is to be challenged on a basis that may be capable of being explained or otherwise addressed by the witness or the party calling the witness, that such a challenge be made clear. That is usually done by way of cross-examination: Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1 at 22-23 (per Hunt J). It may also be accepted, for the same reasons of fairness which inform the rule, that there would be a denial of procedural fairness if a judge or tribunal rejected a witness’s evidence on a ground which was not, but should have been raised with the witness by the other party or the court or tribunal. See Kuhl v Zurich Financial Services Australia Limited [2011] HCA 11; 243 CLR 361 at [69]-[72] per Heydon, Crennan and Bell JJ.

17. [54]

    Here the matter which concerned the Tribunal, and which was taken into account in the assessment of Dr Smith’s evidence, was expressly raised with him, as the relevant witness. He was asked (see [49] above) whether he perceived his duty to be to assist his patient or to advocate for her and responded that he did see that as his ongoing role, even at the time he was giving evidence.

18. [55]

    The second argument may be disposed of shortly because Dr Smith’s perceived lack of independence was not “the” reason for rejecting his evidence or preferring the evidence of Dr Samuels. Furthermore that the reasoning of a court or tribunal for arriving at a finding of fact is illogical or demonstrably unsound does not itself amount to an error of law: R v District Court; Ex parte White [1966] HCA 69; 116 CLR 644 at 654; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156-157; Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 356-357; BHP Billiton Ltd v Dunning [2015] NSWCA 55 at [35]-[37].

19. [56]

    There was evidence supporting the Tribunal’s inference that in giving his evidence Dr Smith was trying to carry out his perceived duty of assisting his patient. That evidence included Dr Smith’s answers to that effect as well as during his cross-examination more generally. That finding together with the other matters to which the Tribunal referred provided a factual basis for preferring the evidence of Dr Samuels and concluding that Dr Qasim suffered from a psychiatric disorder.

20. [57]

    The remaining two arguments made in support of ground 7 require a consideration of Dr Samuels’ evidence. The third argument is that the Tribunal’s finding that Dr Qasim suffered from a serious psychiatric disorder was not “reasonably open” in the absence of any evidence of a diagnosis of a recognised psychiatric disorder. This argument directs attention to whether there was any evidence supporting the Tribunal’s finding. That in turn raises the question whether the disorder about which Dr Samuels gave evidence constituted an “impairment”, as defined in s 5 of the applicable National Law. The question raised by the fourth argument is whether certain factual assumptions made by Dr Samuels were proved so as to provide a foundation for the admissibility of his opinion.

21. [58]

    Dr Samuels’ first report is dated 21 September 2004. He concludes in that report that he could not find “clear evidence on examination today that Dr Qasim suffers from any significant impairment. Specifically I can find no evidence that she suffers from a bipolar disorder or any other psychiatric illness.” His second report is dated 27 April 2011. That report was made with the benefit of a number of documents then provided by the Medical Council and a clinical examination of Dr Qasim, at which her brother and accountant were also present. During the course of that examination there was discussion about the incidents involving Ms Dinkelman, Dr Newman, Mr Igra, and Professor Smith. Dr Samuels also asked Dr Qasim about her sending letters to general practitioners, Heads of Departments and politicians concerning allegedly stolen files. His report records:

22. [59]

    At the conclusion of that report Dr Samuels expresses his opinion as to Dr Qasim’s psychiatric issues at that time:

23. [60]

    In his report dated 1 February 2012, Dr Samuels takes account of additional documentary material and a further interview with Dr Qasim, again in the company of her brother and her accountant. His opinion includes:

24. [61]

    In his evidence-in-chief, Dr Samuels was asked whether he had read anything in Dr Smith’s analysis which caused him to change that opinion. He responded:

25. [62]

    Dr Samuels also addressed the question whether it was necessary for his conclusion that Dr Qasim suffered from a mental condition or disorder that there be a diagnosis of a formal psychiatric disorder in accordance with the DSM published by the American Psychiatric Association. That question was raised by Dr Anderson:

26. [63]

    In relation to whether Dr Qasim’s mental disorder detrimentally affected her capacity to practise medicine, Dr Samuels gave the following evidence:

27. [64]

    There was no requirement under the applicable National Law that a diagnosis that a person has a mental condition or disorder in the sense of an “impairment” be formed in accordance with the DSM or that, having concluded that the practitioner has a paranoid disorder, it was necessary to identify where along the paranoid spectrum, from personality disorder to paranoid schizophrenia, the practitioner fell: see Grant v HCCC [2003] NSWCA 73 at [11], [12]. Dr Samuels’ evidence was that the appellant has a paranoid condition “which falls somewhere between a paranoid personality disorder and a paranoid schizophrenia”. That was sufficient to support the Tribunal’s finding that Dr Qasim has a “serious psychiatric disorder” which constitutes an “impairment” under the applicable National Law: [138], [140], [163], [164].

28. [65]

    Dr Samuels’ opinion, at least in part, was based on there being a pattern of complaints from people with whom Dr Qasim was “offside” (adopting his language), particularly a history of disputes with the occupants of the apartment building at Randwick.

29. [66]

    The Tribunal observed at [108]:

30. [67]

    By the appellant’s fourth argument, it is said that the Tribunal declined to make findings regarding that dispute, that its declining to do so meant that some of the facts assumed by Dr Samuels were not proved and that the basis for his opinion was not established. The fundamental difficulty for this argument is that Dr Samuels made clear that, for the purpose of his diagnosis, the relevant fact was that there had been disputes and that they continued over a number of years. It was not necessary to determine whose version of any particular dispute was to be accepted or to attempt to apportion blame for its existence or the way in which it subsequently developed. In that regard, Dr Samuels explained:

31. [68]

    There was evidence which supported Dr Samuels’ assumption that there was a longstanding pattern of disputes and resort to litigation from about 2000. That evidence included letters and documents that Dr Qasim had written and information provided by Dr Qasim in the two interviews with Dr Samuels. It showed that there were several complaints by other residents of the Randwick apartment building concerning Dr Qasim and her behaviour. The evidence further shows that those disputes resulted in the making of apprehended violence orders and proceedings before the Consumer, Trader and Tenancy Tribunal. The occupants or owners involved included Mr Igra, Dr Miller, Dr Sutherland, Mrs Sutherland, Mr Sidwell and his wife (see [11]-[13] above).

32. [69]

    The appellant’s submission that there was no evidence supporting Dr Samuels’ assumption as to a history of interpersonal conflicts, unusual communications and a pattern of litigation must be rejected. It follows that ground 7 is not made out on any of the bases argued.

The challenge to the finding that any psychiatric disorder was of a nature that would affect Dr Qasim’s capacity to practise medicine (ground 8)

1. [70]

   It is submitted on behalf of Dr Qasim that the Tribunal did not have any evidentiary basis for its finding that Dr Qasim’s paranoid disorder interfered with her judgment, communication skills and clinical ability: [170]. Some of the manifestations of this interference are recorded by the Tribunal at [172] and [173].

2. [71]

   The evidence, including the evidence of Dr Samuels extracted at [63] above, provided a logical basis for the Tribunal’s conclusion as to the effect of Dr Qasim’s impairment. In particular, Dr Samuels’ opinion was that Dr Qasim had “judgment problems” and that there was likely to be an ongoing pattern of problems and “difficulty with her practice”. His opinion was that this would continue to be the case unless Dr Qasim was prepared to engage in a therapeutic relationship with somebody and subject herself to supervision and monitoring. The Tribunal concluded, on the evidence, that was unlikely to effectively occur: [176]. Ground 8 should also be dismissed.

Did the Tribunal err in determining the period during which Dr Qasim would not be entitled to reapply for registration? (ground 9)

1. [72]

   It is not submitted on behalf of Dr Qasim that the Tribunal did not have power to make an order that she not be permitted to reapply for registration for a period of four years from 2 May 2014.

2. [73]

   Rather it is submitted that, in exercising its discretion to make such an order, the Tribunal was required to take into account the fact that Dr Qasim had been suspended from practice for a period of three and a half years from December 2010. That submission proceeds on a wrong view as to the purpose of the disciplinary powers of the Tribunal. That purpose is not to punish the practitioner concerned but rather to protect the public and maintain proper professional standards: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [31]; Health Care Complaints Commission v Do [2014] NSWCA 307 at [34]; see also National Law, ss 3(2) and 3A.

3. [74]

   The matters to be considered by the Tribunal in making what in effect was a four year disqualification order included the period of time likely to be required for the practitioner to change her conduct so that she was competent to practise without risk to the health and safety of the public. In addressing that question, the Tribunal noted that Dr Qasim had “limited insight into her impairment” and that she did not accept that she had a mental illness which required treatment: [176]. In circumstances where it was not suggested that at any time during the three and a half year suspension period from 2010 Dr Qasim had accepted already that she had a mental illness and commenced undertaking appropriate treatment, the fact of that period was not relevant to that question. Accordingly there was no failure of the Tribunal to take into account a mandatory relevant consideration and it did not err in law in not doing so. This ground also should be dismissed.

Whether the order cancelling Dr Qasim’s registration was excessive (ground 10)

1. [75]

   It is submitted that the Tribunal’s discretion as to the order which should be made on the basis of its findings as to impairment and competence miscarried because it failed to consider the range of options available to it. To constitute an error of law that failure must be in respect of a relevant consideration which the Tribunal was required to take into account.

2. [76]

   The appellant’s submission does not take account of the Tribunal’s reasoning process and the fact that it did consider whether the imposition of a lesser sanction, being the imposition of conditions requiring supervision and retraining, was appropriate in relation to its findings of impairment and competence: [176]-[178]. In particular, the Tribunal concluded that it had “significant doubts as to whether supervision and further training would assist” in circumstances where Dr Qasim had not accepted that she had a mental illness which required treatment, or at least, accepted the problems she had so that she might be given assistance. Accordingly, there was no error of law. The Tribunal had regard to the matter which it is contended was required to be taken into account. Ground 10 should be dismissed.

Complaints one, two and three (grounds 2, 3, 4 and 6)

1. [77]

   It is not necessary to consider these grounds because complaints one, two and three did not provide the basis for the exercise of the Tribunal’s power to cancel Dr Qasim’s registration. I will, nevertheless, address them briefly.

2. [78]

   As to ground 2: the relevant question is whether particulars 1, 2, 3 and 6 to complaint one were “capable, as a matter of law, of constituting unsatisfactory professional conduct” within s 139B(1)(a). Those particulars relate to three letters sent by Dr Qasim to general practitioners regarding patients she had seen. In each case it was alleged that a statement was made which was incorrect or misleading as to the accepted current treatment for particular conditions. Unsatisfactory professional conduct included conduct that demonstrated that the “knowledge, skill or judgment possessed or care exercised, by the practitioner in the practice” of her profession was significantly below the standard reasonably to be expected. Each of the particulars, if proved, was capable of demonstrating that Dr Qasim’s knowledge and care was significantly below the standard reasonably expected of a specialist endocrinologist. For these reasons, ground 2 should be dismissed.

3. [79]

   Grounds 3 and 4 challenge the adequacy of the Tribunal’s reasons for its conclusions that the conduct particularised as constituting unsatisfactory professional conduct, which was the subject of complaints one and two, was sufficiently serious, considered separately or together, to justify the cancellation of Dr Qasim’s registration so as to constitute professional misconduct. In my view these grounds, formulated in this way, should be upheld. As I observed in [29] above, the Tribunal did not explain why any conduct which was the subject of complaints one and two was sufficiently serious to justify suspension or cancellation. Nor did it explain why any of the conduct, when considered together, was of a sufficiently serious nature to justify a suspension or cancellation. I do not consider that [168] of the Tribunal’s reasons takes the matter or the reasoning any further. It simply recites what must be found to satisfy the definition of professional misconduct in s 139E(a) or (b). The Tribunal was required to explain the process of reasoning by which it arrived at the opinion that Dr Qasim had been guilty of professional misconduct in sufficient detail to enable a court to see whether that opinion involved any error of law. That was at least necessary to allow the appellant to exercise her right of appeal on questions of law under s 162(1) of the applicable National Law. See Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA 43; 252 CLR 480. The Tribunal’s reasons in relation to complaint three do not satisfy that standard. Grounds 3 and 4 should be upheld on this basis.

4. [80]

   However, the upholding of those grounds does not result in the allowing of the appeal or the need for any further order or other relief. The Tribunal’s finding with respect to complaint three did not provide the basis for the making of the challenged orders. Furthermore the appeal in relation to those orders is to be dismissed and the appellant does not seek, in that event, any order that complaint three be referred back to the Tribunal so that it might furnish further reasons.

5. [81]

   Finally, as to ground 6: the Tribunal did not hold that any of the conduct found to have occurred in relation to complaints one, two and three was a basis for cancelling the appellant’s registration. For that reason this ground addresses a holding which the Tribunal did not make and accordingly is misconceived. It should be dismissed.

Costs (ground 1 of draft notice of appeal)

1. [82]

   Having concluded that Dr Qasim's registration should be cancelled and that she should not be permitted to apply for re-registration or review for a period of four years, the Tribunal continued at [180]-[181]:

2. [83]

   The Tribunal assessed the Commission's costs at $70,000 and ordered that Dr Qasim pay two-tenths of those costs.

3. [84]

   Clause 13 in Sch 5D of the applicable National Law relevantly provided:

4. [85]

   In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [46]-[48] this Court (Basten JA, McColl JA and Sackville AJA agreeing), following Ohn v Walton (1995) 36 NSWLR 77, held that a power in substantially the same terms was to be exercised for the purpose of indemnifying or compensating the person in whose favour a costs order was to be made, and not for the purpose of punishing the person against whom it is made. That being so, ordinarily costs should follow the event unless there are reasons to conclude otherwise. Lucire was followed in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. (This position is in contrast to that under s 60 of the CAT Act which provides by subs (1) that each party to proceedings in the Tribunal is to pay its own costs and that the Tribunal may award costs in relation to proceedings "only if it is satisfied that there are special circumstances warranting an award of costs".)

5. [86]

   Clause 29(6)(c) of Sch 5, Pt 6 of the CAT Act provides that an appeal does not lie to this Court against a decision as to costs, except by leave of the Court.

6. [87]

   The Commission contends that the Tribunal erred in the exercise of the costs discretion by doing so from the starting position that "each party pay their own costs": [180]. In response, Dr Qasim contends that the second sentence of [180] reflects the costs order that the Tribunal would otherwise have made having taken account of the general rule that costs follow the event. That submission must be rejected. The factors that are identified as justifying an order that each party pay its own costs are not factors that would justify any departure from the general rule that costs follow the event. Those factors do no more than record that the respective parties were entitled to bring and to defend the proceedings in relation to the complaint. The matter which the Tribunal then refers to (that Dr Qasim gave evidence which was found to be untrue) represents a reason for departing from a starting position that is understood to be that each party pay its own costs. In my view the second sentence of [180] reveals that as being the Tribunal's starting position in determining the exercise of the costs discretion. As such, the exercise of that discretion miscarried.

7. [88]

   The parties accept that if there was an error in the exercise of the costs discretion, provided leave is granted, this Court may re-exercise the discretion and may do so on the basis that the Commission's reasonable costs incurred in the proceedings totalled $70,000.

8. [89]

   In my view leave should be granted, the appeal allowed and an order made that Dr Qasim pay the Commission's costs of the proceedings before the Tribunal, those costs assessed at $70,000.

Conclusion

1. [90]

   I propose the following orders be made:

2. [91]

   WARD JA: I have had the advantage of reading in advance the comprehensive reasons of Meagher JA. I agree with Meagher JA that the appeal should be dismissed for the reasons his Honour gives.