Chen v Health Care Complaints Commission

1. [1]

   BASTEN JA: For the reasons given by Payne JA, the appeal must be dismissed. The following additional observations concern the submission that the power of the Tribunal to cancel a practitioner’s registration is engaged only when the Tribunal is satisfied that the practitioner is permanently or indefinitely unfit to practise.

2. [2]

   As the practitioner acknowledged, no such limitation is to be found in the express language of s 149C of the Health Practitioner Regulation National Law (NSW), which confers the power of cancellation. Rather, the practitioner relied upon two principal bases for implying such a requirement. First, the language of permanent or indefinite unfitness is to be found in several judgments dealing with professional discipline, in relation to both medical and legal practitioners. Secondly, the implication was said to be consistent with the requirement in s 149C that the Tribunal choose between suspension and cancellation. The necessary implication, it was contended, was that only suspension was available in circumstances where the Tribunal was not satisfied that the element of unfitness was permanent or likely to continue for an indefinite period. The implication was said to be found within the chapeau to s 149C(1), which provides as follows:

3. [3]

   Before addressing the structure and content of that provision, it is appropriate to have regard to the caselaw upon which the practitioner placed reliance. The specific cases have been addressed by Payne JA; my purpose is to emphasise the context in which those cases were decided.

4. [4]

   As a preliminary point, one should be cautious in relying upon cases concerned with legal practitioners when dealing with the regulation of the medical profession. First, the institutional structures within which the respective professions operate are, and have been historically, different in significant respects. Secondly, the functions exercised by each profession differ significantly. To take merely an obvious example, an important purpose of regulating lawyers is to ensure that they deal properly with clients’ property and money. With respect to doctors, a significant purpose is to protect the physical integrity of patients.

5. [5]

   Despite those institutional and functional differences, there is an important historical trend to be seen in the scope of regulation of each. That trend has involved an expansion of the primary focus of regulation from (in the 19th century) the control of conduct involving moral turpitude, to the regulation (in the last 30 years) of conduct demonstrating a degree of incompetence.

6. [6]

   Early Australian statutes adopted the concept of “infamous conduct in any professional respect”, being the language of s 29 of the Medical Act 1858 (UK). In Allinson v General Council of Medical Education and Registration [1] the English Court of Appeal adopted an understanding of that phrase prepared by Lopes LJ, namely conduct “which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency”. [2]

7. [7]

   The New South Wales Medical Board was originally established by the Imperial Parliament in 1838 [3] and reconstituted by the Medical Practitioners Act 1898 (NSW), s 4. The power of the Board to deregister a practitioner who had been guilty of “infamous conduct in any professional respect” was first conferred by the Medical Practitioners Acts Further Amendment Act 1900 (NSW), s 1. The same language was continued in the Medical Practitioners Act 1912 (NSW), s 9(c) and in the Medical Practitioners Act 1938 (NSW), s 27(1)(c). However, s 27 contained an expansive definition of that term which at least diminished the expectation that such conduct generally involved moral turpitude.

8. [8]

   In Ex parte Meehan Sugerman J referred to a judgment in the Privy Council, Felix v General Dental Council, [4] where Lord Jenkins had said of the phrase “infamous or disgraceful conduct in a professional respect” that, generally speaking, there must be “some element of moral turpitude or fraud or dishonesty in the conduct complained of, or such persistent and reckless disregard of the dentist’s duty in regard to records as can be said to amount to dishonesty for this purpose”. [5]

9. [9]

   In 1972, the 1938 Act was amended to refer to “misconduct in a professional respect”. Concluding that, by 1972, the historical language referred to no more than “serious misconduct judged according to the rules written or unwritten governing the profession”, [6] Priestley JA held in Qidwai v Brown [7] that the new language involved no change in the underlying test.

10. [10]

    This language was abandoned in 1987 with the introduction of the current concept of “professional misconduct”, which included conduct demonstrating inadequate knowledge, experience, judgment, skill or care in the practice of medicine. [8] Equivalent language is now found in s 139B(1) of the Health Practitioner Regulation National Law.

11. [11]

    When the language of “infamous conduct in any professional respect” provided the statutory standard, it was conventional practice for the disciplinary authority to seek reputable peer opinions that the conduct complained of would “incur the strong reprobation of professional brethren of good repute and competence”, being language adopted by Sugerman J in Ex parte Meehan. [9] Even then a distinction was drawn between conduct which bore “the badge of iniquity” in a general sense and other forms of misconduct which were deviations from professional practice, “although unattended by any taint of moral obliquity.” [10]

12. [12]

    The lesson to be drawn from this history is twofold. First, whether or not the historical language was limited to conduct which could be characterised as moral obliquity, most of the early cases concerned such conduct. The analogy with respect to the legal profession was the requirement that a person be of good fame and character. Where conduct was understood to reveal a significant defect in character, incompatible with continued professional registration, it was largely assumed that the defect would remain indefinitely, perhaps permanently but at least for a period of uncertain length, which might be terminated only by the applicant demonstrating a change in character.

13. [13]

    On the other hand, incompetent professional care is not necessarily an indicator of a defect in character, although it may be. In many cases incompetence will be capable of rectification by undertaking further training and possibly obtaining further experience in a supervised role. That possibility allows that unsatisfactory professional conduct may be dealt with by the imposition of conditions, or by a period of suspension. However, whether such orders will be sufficient is a matter for the disciplinary tribunal to determine in each case. Unless the statutory language suggests otherwise, the grant of a range of powers should not be constrained by implied limitations on their availability.

14. [14]

    There may well be cases in which, in the proper exercise of its discretion, based upon the findings it has made, the Tribunal would err in failing to cancel a practitioner’s registration; [11] in other cases, cancellation may be seen as an unreasonable or disproportionate exercise of the power conferred on the Tribunal. However, these possibilities do not justify an approach to statutory construction which would imply limitations by reference to specific criteria, such as the permanency or indefiniteness of the period during which it may be expected that the person should not be allowed to practise medicine.

15. [15]

    There is an important distinction between the exercise sought to be undertaken by the practitioner in this case, as a matter of statutory construction, and the exercise by which a statutory power is held to be conditioned by an implied requirement to accord procedural fairness. [12] Similarly, it is a different exercise from the implication that a discretionary power conferred by statute is to be exercised “reasonably”. [13]

16. [16]

    It is one thing to imply a general standard applicable to decision-making by the repository of the statutory power; it is quite another to imply (as sought by the practitioner) a specific limitation, not on the manner of the exercise of the power, but on the circumstances in which it can be exercised.

17. [17]

    Put somewhat differently, what the practitioner sought to do was to elevate a particular factor which was certainly a permissible, and perhaps a mandatory, consideration into a precondition to the engagement of the power to cancel a registration. To understand why that course must fail, it is necessary to return to the language of the statute.

18. [18]

    The structure of Part 8 of the Health Practitioner Regulation National Law is inconsistent with any generic limitations on the powers conferred in Pt 8, Div 3. Section 149A(1) confers powers to caution or reprimand, impose conditions on registration, order a practitioner to undergo medical or psychiatric treatment or counselling, or complete an educational course, order the practitioner to report on his or her practice and to seek advice in relation to management of the practice. Section 149B allows for the imposition of a fine where the Tribunal finds the practitioner guilty of unsatisfactory professional conduct or professional misconduct. Section 149C provides, as noted above, for the Tribunal to suspend or cancel the practitioner’s registration.

19. [19]

    The circumstances in which cancellation or suspension is available include findings of incompetence, professional misconduct, conviction rendering the practitioner unfit in the public interest and not being a suitable person. The term “professional misconduct” does not have a specific meaning; it is merely a category of “unsatisfactory professional conduct” which is sufficiently serious to justify suspension or cancellation. [14] The phrase “unsatisfactory professional conduct” is broadly defined by reference to 12 separate categories of conduct relating to professional practice. They include demonstrating competence or care below the standard reasonably expected of a practitioner of an equivalent level of training or experience, [15] making a referral in circumstances where the practitioner has a financial interest in giving that referral without disclosing the interest, [16] overservicing [17] and, finally, any other improper or unethical conduct relating to the practice of the practitioner’s profession. [18]

20. [20]

    There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be “sufficiently serious” to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1).

21. [21]

    Finally, in determining whether to suspend the practitioner’s registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner’s registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it.

22. [22]

    The fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered. It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make. The suggestion that there must be a two-stage process in undertaking that function was misguided.

23. [23]

    LEEMING JA: I agree with Payne JA. I also agree with the additional observations made by Basten JA.

24. [24]

    PAYNE JA: This is an appeal by Dr Chen, under the Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”) from orders made by the Occupational Division of the Civil and Administrative Tribunal (“the Tribunal”) on 28 November 2016: Health Care Complaints Commission v Chen [2016] NSWCATOD 144.

25. [25]

    The appeal is brought as of right, limited to questions of law or with leave on any other grounds: NCAT Act, s 29(4)(b), Sch 5, Pt 6.

Background

1. [26]

   Until 28 November 2016, the appellant was a registered general practitioner under the Health Practitioner Regulation National Law (NSW) (“the National Law”). On that day, the Tribunal cancelled her registration, such order taking effect 14 days after the decision, and directed pursuant to s 149C(7) of the National Law that an application for the review of that order could not be made for a period of 18 months.

2. [27]

   Three complaints were made against the appellant by the respondent, the Health Care Complaints Commission (“HCCC”). Each of the complaints related to the over-prescription of drugs of addiction contained in Schedule 8 of the Poisons List made pursuant to s 8 of the Poisons and Therapeutic Goods Act 1966 (NSW):

   1. (1)

      that the practitioner is guilty of unsatisfactory professional misconduct (as defined in s 139B of the National Law) (Complaint One). Particulars were provided with respect to 15 patients who were treated and prescribed drugs by the practitioner;

   2. (2)

      that the practitioner is guilty of unsatisfactory professional misconduct (as defined in s 139B of the National Law) in that she failed to maintain adequate medical records in accordance with statutory requirements (Complaint Two); and

   3. (3)

      that the practitioner is guilty of professional misconduct (as defined in s 139E of the National Law) (Complaint Three). The HCCC relied on the particulars as to Complaints One and Two to establish professional misconduct.

3. [28]

   The complaints all related to the activities of the appellant at Dundas Valley medical practice while she was employed part-time from December 2011 to September 2015.

4. [29]

   Complaint One alleged that the practitioner prescribed various drugs:

   1. (1)

      without performing an appropriate medical assessment prior to issuing the prescriptions in relation to 11 patients;

   2. (2)

      without following up a referral to a specialist for treatment, review and/or advice in relation to one patient;

   3. (3)

      without a timely referral to a particular specialist for treatment, review and/or advice in relation to five patients;

   4. (4)

      without obtaining an authority to prescribe a Type B drug of addiction to one patient for continuous therapeutic use for a period exceeding two months, contrary to s 28(2)(a) of the Poisons and Therapeutic Goods Act;

   5. (5)

      without obtaining an authority to prescribe a Type C drug of addiction to 15 “drug dependent person[s]” (within the meaning of s 27 of the Poisons and Therapeutic Goods Act), contrary to section 28(3) of that Act;

   6. (6)

      which were contraindicated as the practitioner knew or ought to have known in that 14 patients were exhibiting drug seeking behaviours and that the drugs so prescribed were being, or were likely to be, abused;

   7. (7)

      inappropriately in a quantity and for a purpose that did not accord with the recognised therapeutic standard of what is appropriate in the circumstances, contrary to cl 79 of the Poisons and Therapeutic Goods Regulation 2008 in relation to nine patients;

   8. (8)

      for a duration that was in excess of recognised therapeutic standards of what is medically appropriate in relation to six patients;

   9. (9)

      in an inappropriate combination with one or more benzodiazepines in relation to five patients;

   10. (10)

       being, Diazepam and Alprazolam, in an inappropriate combination with each other drug, in circumstances where the practitioner ought to have known that the one patient was previously registered on the NSW Opioid Treatment Program;

   11. (11)

       inappropriately and in a quantity and/or for a purpose, that does not accord with the recognised therapeutic standard for what is appropriate in the circumstances contrary to cl 34 of the Poisons and Therapeutic Goods Regulation in relation to three patients;

   12. (12)

       to one patient who had been referred by another doctor at the same practice to a centre for addictive medicine and registered on the NSW Opioid Treatment Program and the practitioner knew, or ought to have known, about this referral; and

   13. (13)

       to one patient when the practitioner ought to have known that that patient was on a NSW Opioid Treatment Program at the time.

5. [30]

   Complaint Two alleged that the practitioner failed to maintain adequate medical records in accordance with Sch 2 to the Health Practitioner Regulation (NSW) Regulation 2010 for each of the 15 patients, that is, she failed to record:

   1. (1)

      information known to the practitioner relevant to her diagnosis and treatment of patients including sufficient detail of: the patient’s medical history; the results of any physical examinations of the patient, details of any examination of the patient’s mental state; progress of the patient at each visit; and diagnoses of the patient;

   2. (2)

      particulars of any clinical opinion reached by the practitioner;

   3. (3)

      plans of treatment for the patient (including recording the reasons for the practitioner’s decision to prescribe particular medication); and

   4. (4)

      a level of detail appropriate to the patient’s case and/or to the medical practice involved.

6. [31]

   The appellant admitted each of the complaints made against her and all but one particular. The Tribunal found that the complaints had been proven. Therefore, the only issue before the Tribunal was the nature of any orders that should be made.

Legislative framework

1. [32]

   Where a complaint made under the National Law is proven or admitted, the Tribunal may exercise any of the powers in Subdiv 6 of Pt 8 of the National Law.

2. [33]

   The Tribunal’s power to suspend or cancel a practitioner’s registration is contained in s 149C of the National Law, which provides:

The Tribunal’s findings

1. [34]

   The Tribunal summarised the appellant’s submissions about the appropriate orders which should be made at [131]:

2. [35]

   The Tribunal found that the evidence before it did not support the appellant’s case. It rejected the appellant’s submission that she was simply following other doctors’ practices. It found that the appellant’s actions were “as much a reflection of matters such as ignorance, laziness or a non-caring attitude as it is to the fact that she succumbed to any undue influence by others in the practice”: [132].

3. [36]

   The appellant asserted that she was unaware that she required an authority under the Poisons and Therapeutic Goods Act and associated regulations to prescribe certain drugs of addiction. The Tribunal expressed incredulity at this assertion, but even on the basis that she was genuinely unaware of the requirement, the Tribunal considered that it demonstrated a “naïveté and lack of insight that would seriously bring into question her ability to practice safe medicine”: at [135]. The Tribunal noted that there was no evidence that the appellant attempted to educate herself regarding the prescription of combinations of drugs of addiction.

4. [37]

   Regarding the appellant’s failure to keep adequate medical records, the Tribunal (at [136]) found that:

5. [38]

   The appellant’s actions in improperly prescribing and managing patients who are administered drugs of addiction was a “serious matter”:

6. [39]

   The Tribunal concluded that the appellant was guilty of professional misconduct “of a very serious nature” and expressed “grave doubts” about her ability to “safely practice medicine”. Her behaviour was said to demonstrate “indifference and recklessness”: at [139].

7. [40]

   The Tribunal rejected the appellant’s submission that a practitioner must be found to be “probably permanently unfit to practise” before the Tribunal could cancel her registration, as opposed to suspending her registration. The Tribunal considered that the correct test for whether registration should be cancelled was whether “it can be demonstrated that at the time of the making of the decision that the medical practitioner is unfit to practice medicine safely, and will likely remain so for a significant indefinite period”: at [140].

8. [41]

   The Tribunal concluded that if it was demonstrated that the medical practitioner was unfit to practise medicine safely, and will likely remain so for a significant indefinite period, then it was in the interests of the protection of the public to cancel her registration. The Tribunal found that as an application for re-registration could be made under the National Law at an appropriate time by a practitioner, the permanence of his or her unfitness was not part of the statutory test. The Tribunal (at [140]) considered that:

9. [42]

   In exercising its discretion to cancel the appellant’s registration, the Tribunal made the following findings:

   1. (1)

      the appellant was not currently able to practise medicine safely. This was evident in her “susceptibility to environmental factors”, including time constraints and dominant patients, her failure to obtain the appropriate statutory authorities and keep adequate records: [141];

   2. (2)

      while of lesser significance, it is important to send a message to other practitioners that the serious and extensive misconduct in which the practitioner engaged will not be tolerated by this Tribunal: [142];

   3. (3)

      while the appellant asserted that she had learned from her past and no longer practises medicine in the manner that led to her misconduct, the Tribunal had no “specific evidentiary material” to corroborate these “bald assertions”: [143];

   4. (4)

      despite the appellant’s acceptance of guilt, the mitigating factors she raised – lack of experience and reliance on others – in fact strengthened the case for professional misconduct, as she failed to seek out further information and training to gain the knowledge she was lacking. (The Tribunal accepted that the appellant had completed the course “Issues in Prescribing in General Course” conducted by Monash University in about 16 October 2016.)

The practitioner’s grounds of appeal

1. [43]

   By her amended notice of appeal, filed on 10 May 2017, the appellant sought orders that she:

2. [44]

   The amended notice of appeal raised the following grounds of appeal:

Ground 1

1. [45]

   In relation to ground 1, the appellant submitted that disciplinary actions against legal or medical practitioners are protective in nature, with the Tribunal having primary regard to the protection of the public interest and of the interests of the profession, relying on Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWSC 297 and ss 3(2) and 3A of the National Law.

2. [46]

   The appellant submitted that the proposition that cancellation of a practitioner’s registration means the practitioner is permanently unfit or probably permanently unfit to practise his or her profession was established in Ex parte Lenehan (1948) 77 CLR 403; [1948] HCA 45, and has been applied in various NSW decisions: Ex parte Munro: Re Legal Practitioners’ Act (1969) 71 SR (NSW) 448; Kotowicz v Law Society of New South Wales (No 2) (Court of Appeal (NSW), 7 August 1987, unreported) and In re Dennis (Court of Appeal (NSW), 23 December 1988, unreported).

3. [47]

   The appellant relied upon use of the “probably permanently unfit” test in cases relating to legal practitioners. In The Prothonotary of the Supreme Court of New South Wales v Ritchard (Court of Appeal (NSW), 31 July 1987, unreported) Kirby P said that “the opinion must be reached that the offences warrant at the time of order permanent removal”, and in the same case, McHugh JA said “[n]othing in the evidence in the present case provides any ground for supposing that the presumption of permanent unfitness for practice is not applicable to the Opponent”. The appellant also referred to NSW Bar Association v Maddocks (Court of Appeal (NSW), 23 August 1988, unreported), New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 and Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320.

4. [48]

   The appellant submitted that the test of “probable permanent unfitness” provides the “bright line” between when cancellation is appropriate and when suspension (or some lesser order) should be made. She referred to Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93, at [54] where Campbell JA said, “[i]f the Tribunal or Appeal Panel is of the view that a person is presently unfit to practice, but after a particular period of time will be once again fit to practice, then suspension for that period of time is the appropriate order”. The appellant noted that this principle was also mentioned in passing in the context of a medical professional in Zaidi v Health Care Complaints Commission (1988) 44 NSWLR 82; [1997] NSWCA 354.

5. [49]

   The appellant submitted that a determination that a practitioner is “probably permanently unfit to practise” still has “work to do” alongside Pt 8 of the National Law. In Pt 8, a medical practitioner’s registration can be cancelled, relevantly, where the practitioner is guilty of professional misconduct. Cancellation is mandated under s 149C(3) where the Tribunal is satisfied that a critical condition has been contravened. The appellant submitted that, otherwise, where the preconditions to cancellation have been satisfied, the exercise of the discretionary power of the Tribunal to make protective orders remained unencumbered by the National Law.

6. [50]

   The practitioner emphasised that the Tribunal’s decision to cancel her registration was based on its finding that she would be unfit to practise for a “significant indefinite period”, rather than “indefinitely”. It was submitted that the former may be a period of a few years, whereas the latter is substantially longer and akin to “for the foreseeable future”. The appellant submitted that the Tribunal accordingly erred in not applying the “probably permanently unfit” to practise test.

7. [51]

   The respondent submitted that there was no implied limitation on the power conferred by s 149C(1) of the National Law to cancel a practitioner’s registration only if the Tribunal has found that the practitioner is permanently unfit to practise, probably permanently unfit to practise or indefinitely unfit to practise. It was submitted that the Tribunal was correct to reject this contention for the following reasons.

8. [52]

   First, this implied term has no basis in the language of the National Law. It was submitted that s 149C(1)(a)-(d) of the National Law sets out in unambiguous terms in a series of stand-alone criteria, each of which enlivens the power to cancel a practitioner’s registration. If the Tribunal is satisfied that any one of those criteria is satisfied, then the power to cancel is enlivened. Here, the Tribunal made an express finding that the criterion under s 149C(1)(b) was satisfied and that the appellant was guilty of professional misconduct. It was submitted that the concept of fitness referred to in s 149(1)(c) does not refer to the notion of permanent or probable permanent unfitness.

9. [53]

   The respondent submitted that the appellant had not put forward any argument as to how an implied “permanently unfit” condition is to be accommodated under the different criteria in s 149C(1)(a)-(d), and more broadly, in the cancellation powers in ss 149C(2) and 149C(3).

10. [54]

    Further, the respondent submitted that this implied term would be inconsistent with the National Law for the following reasons.

    1. (1)

       Permanent unfitness is inconsistent with the National Law’s mechanism for review of a cancellation order under s 149C(7). It is therefore expressly envisaged in the statute that a practitioner may apply to have re-visited the question of whether he or she still lacks fitness to practise. The emphasis is on the practitioner’s current fitness to practise (see Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]).

    2. (2)

       When making protective orders, the paramount consideration for the Tribunal is protecting the health and safety of the public. The respondent submitted that it would be anomalous if a practitioner who was currently unable to practise medicine safely could avoid cancellation because the Tribunal was not confident that the unfitness was “probably permanent”. The respondent referred to the Tribunal’s comment at [140] that it would be:

    3. (3)

       An implied requirement that the practitioner be permanently unfit is inconsistent with the registration and accreditation scheme established by the National Law, which ensures that only those who are suitably trained and qualified to practise are registered.

    4. (4)

       One of the objectives of disciplinary action under the National Law is to deter other practitioners from similar misconduct or incompetence. A requirement that prevents the Tribunal from cancelling a registration unless the practitioner is permanently unfit fails to consider the deterrence aspect of disciplinary actions.

    5. (5)

       The appellant relied on the development of permanent unfitness in the context of legal professionals; however, the National Law is not analogous to the statutory scheme which regulates the legal profession.

11. [55]

    The respondent thus submitted that there is no textual or other basis for the practitioner’s submission that the permanently unfit condition provides the “bright line” in s 149C(1) between when cancellation is appropriate and when suspension (or some lesser order) should be preferred.

12. [56]

    The appellant’s suggested implication of a “probably permanently unfit” test into the cancellation power in s 149C(1) of the National Law should be rejected.

13. [57]

    The starting point of the argument, ss 3(2) and 3A of the National Law, does not assist the appellant. Section 3(2) contains a number of objectives for the national registration and accreditation scheme which do not throw any light on the suggested “probably permanently unfit” implied condition. None of the objectives refer to fitness at all. The objective identified in s 3(2)(a) is:

14. [58]

    This objective, which is the closest one to identifying “fitness” to practise, tends against the suggested implication by emphasising the protection of the public as the key objective. Similarly, s 3A, in identifying the protection of the health and safety of the public as the paramount consideration in the exercise of functions under a provision of the National Law, provides no support for the suggested implication.

15. [59]

    The appellant’s case in support of such a condition on the cancellation power in s 149C relied heavily on statements drawn from cases dealing with applications under earlier iterations of the laws relating to medical professionals and under the various laws relating to the admission and regulation of legal professionals. When, as here, there is an explicit and detailed statutory scheme, a construction which commences by reference to constraints derived from cases decided under other regimes is contrary to well established principle: Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vict) (2001) 207 CLR 72 at [14]-[19] per Gaudron, Gummow, Hayne and Callinan JJ. As the Court observed at [19], “[t]he relevant statutory provision must govern”.

16. [60]

    The decisions relied upon by the appellant did not address the specific terms of the National Law. Those terms differ in fundamental respects from the regimes the subject of the decisions relied upon by the appellant. The test applied in all of the cases relied upon by the appellant involved notions of moral culpability, expressed variously, but in ways which are not reflected in the terms of the National Law.

    1. (1)

       In Ex parte Lenehan (1949) 77 CLR 403; [1948] HCA 45, the High Court explained the “probable permanent unfitness” test in circumstances where a solicitor who had been struck off for dishonesty offences and was applying for readmission, per Latham CJ, Dixon and Williams JJ at 422:

    2. (2)

       Ex parte Meehan; Re Medical Practitioners Act [1965] NSWR 30 dealt with s 27(1)(c) of the Medical Practitioners Act 1938 (NSW) which applied where a practitioner was “… guilty of infamous conduct in any professional respect”.

    3. (3)

       Qidwai v Brown [1984] 1 NSWLR 100 dealt with a case after 1972, when the wording in s 27(1)(c) of the Medical Practitioners Act was amended to address “misconduct in a professional respect”. Priestley JA held that the test identified in Meehan remained applicable to the new form of words.

    4. (4)

       In Pillai v Messiter (No 2) (1989) 16 NSWLR 197 Kirby P made the following observations about the statutory test of “misconduct in a professional respect” under the Medical Practitioners Act, at 200:

17. [61]

    The appellant’s submissions tended to assume that the test in the Legal Profession Uniform Law (NSW) and the National Law were relevantly similar. The definitions of unsatisfactory professional conduct and professional misconduct in the respective statutes, however, bear little relationship to each other. Whether any question of permanency of unfitness arises depends upon the relevant statutory question.

18. [62]

    The definition of professional misconduct in the National Law focuses on conduct sufficiently serious to justify suspension or cancellation and does not refer to fitness. Under the National Law, professional misconduct is defined in s 139E to mean:

19. [63]

    By contrast, s 297 of the Legal Profession Uniform Law defines professional misconduct to include:

20. [64]

    The question posed by cases in which the moral character of the practitioner is in issue is essentially whether the practitioner can be trusted by colleagues. If a practitioner cannot be trusted today, the question becomes whether the practitioner could be expected to change his or her character and become trustworthy. In such circumstances the “probably permanently unfit” test for removal from the roll of legal practitioners is explicable. The cases relied upon by the appellant all involved notions of moral culpability.

    1. (1)

       In The Prothonotary of the Supreme Court of New South Wales v Ritchard the Court dealt with a legal practitioner facing an allegation of professional misconduct applying the “fit and proper person” test arising under the Court’s inherent jurisdiction.

    2. (2)

       In NSW Bar Association v Maddocks (Court of Appeal (NSW), 23 August 1988, unreported) the Bar Association sought a declaration, inter alia, that Mr Maddocks was not a fit and proper person to be a member of the Bar.

    3. (3)

       In all of New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA, NSW Bar Association v Murphy (2002) 55 NSWLR 23; [2002] NSWCA 138 and Stanoevski v The Council of the Law Society of New South Wales the Court applied the “fit and proper person” test in various contexts.

    4. (4)

       In Prothonotary of the Supreme Court of NSW v P Young CJ in Eq dealt with the “good fame and character” test and said, relevantly at [17]:

21. [65]

    To the extent that the appellant relies on what was submitted to be a relevant similarity between the National Law and the Legal Profession Uniform Law, it is sufficient to observe that the regulation of legal practitioners continues to be based upon the test of “good fame and character”, unlike the position under the National Law for medical practitioners where there is no such requirement: see ss 16 and 17 of the Legal Profession Uniform Law and r 10 of the Legal Profession Uniform Law Admission Rules (NSW).

22. [66]

    Meagher JA’s observation in Health Care Complaints Commission v Do at [33] is apposite:

23. [67]

    The statutory language in the National Law does not involve any element of moral turpitude. Unlike the cases relied upon by the appellant here, which all involve some degree of moral culpability, there is no occasion to imply a test of “probably permanently unfit” to reflect an assessment of the character of the practitioner.

24. [68]

    There is no textual basis for the appellant’s submission that the “probably permanently unfit” condition provides a “bright line” in s 149C(1) between when cancellation is appropriate and when suspension (or some lesser order) should be preferred. The Tribunal here made an express finding that it was satisfied under s 149C(1)(b) that the appellant was guilty of professional misconduct. Section 149C(1)(b) is to be contrasted with 149C(1)(c). The former does not refer to the concept of fitness at all, whether permanent or temporary. The latter refers to fitness but does not describe either permanent or temporary unfitness as relevant in enlivening the cancellation power.

25. [69]

    The appellant’s submission that the “probably permanently unfit” qualification should be implied into the chapeau of s 149C(1) should be rejected. If inserted in the chapeau, the implied qualification would presumably also qualify a power to suspend which is of its nature finite. Even if the qualification were limited to the cancellation power, such an implication would do violence to each of the sub-sections of s 149C(1), in particular ss (a), (b) and (d) which do not refer at all to the concept of “fitness”. Section 149C provides a detailed statutory scheme as to when the cancellation power is enlivened and s 149C(1) provides that, “[t]he Tribunal may... cancel the registered health practitioner’s registration if the Tribunal is satisfied” of any one of the four matters identified in s 149C(1)(a)-(d). Three of those sub-paragraphs do not refer to fitness at all and the fourth, s 149C(1)(c), is not subject to any “probably permanent” limitation upon the fitness finding required.

26. [70]

    The suggested limitation of “probably permanent unfit” in s 149C(1) would also be inconsistent with the separate powers of cancellation in s 149C(2)‑(3) where no such limitation applies. The appellant did not justify why the suggested limitation would apply only to s 149C(1), and not also to ss 149C(2) and (3) which also deal with cancellation, nor did she present any arguments to explain how any such limitation might apply in the context of those sub-sections. Section 149C(2)(a) also refers to the concept of “unfit”. If this implied condition were to be read into the chapeau of s 149C(2), there would be two separate conditions of unfitness. The suggested implication is inconsistent with the language of the section as a whole.

27. [71]

    A requirement of probably permanent unfitness is also inconsistent with the statute’s contemplation that a practitioner is able to re-apply for registration under s 149C(7). That sub-section contemplates that a practitioner may apply to have the question of whether he or she lacks fitness to practise re-visited. The emphasis in such an application is on the practitioner’s current fitness to practise, rather than an assessment of “probable permanent unfitness”.

28. [72]

    As was pointed out by the respondent, the premise of the regime formulated for the regulation of legal practitioners, sought to be applied in the present context, is that a person who is removed from the roll will have to address a finding that he or she was permanently unfit to practise. That heavy burden is, to say the least, difficult to reconcile with the provisions of Division 8.

29. [73]

    The suggested implication of the “probably permanently unfit” limitation in s 149C would also need to take account of the detailed definitions of matters comprising unsatisfactory professional conduct defined in s 139B. It will be recalled that professional misconduct is defined in s 139E as “unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration”. The construction argument advanced by the appellant did not address how the suggested implication was consistent with the various ways in which unsatisfactory professional conduct is defined by s 139B.

30. [74]

    The scheme of the National Law, and in particular Pt 7, Registration of Health Practitioners, and Pt 8, Health, Performance and Conduct, seem to me to be inconsistent with the proposed implication. To the extent that fitness is addressed in these provisions it is not addressed by reference to permanent or temporary unfitness. An implied requirement that the practitioner be “probably permanently unfit” before having his or her registration cancelled is inconsistent with the detailed registration and accreditation scheme established by Pts 7 and 8 of the National Law.

31. [75]

    There is no occasion to imply a “probably permanently unfit” limitation to the cancellation power in s 149C of the National Law. In so concluding, I agree with Basten JA’s additional reasons.

32. [76]

    Ground 1 of the notice of appeal should be rejected.

Ground 1A

1. [77]

   The appellant submitted that there are two distinct discretions to be exercised by the Tribunal in making protective orders:

   1. (1)

      a determination of what protective orders under ss 149A, 149B and 149C(1) are required to safeguard the health and safety of the public; and

   2. (2)

      a determination of the period during which the Tribunal can confidently estimate the protective orders will not need to be reviewed, under s 149C(7).

2. [78]

   The appellant submitted that there was a danger that consideration of the period to be set under s 149C(7) when setting the primary protective order infects the exercise of the Tribunal’s primary protective function. It was submitted that the Tribunal may be tempted to use an order such as cancellation because it is wrongly thought to be ameliorated by a relatively short period during which an application for review may not be made.

3. [79]

   The appellant submitted that this danger was borne out here in the Tribunal’s decision to cancel the practitioner’s registration, and prevent application for re-registration for 18 months.

4. [80]

   The practitioner pointed to the following extract from the transcript of the Tribunal’s hearing:

5. [81]

   The appellant submitted that that passage indicates that the determination of the period under s 149C(7) influenced the order to cancel the appellant’s registration. It was submitted that, even if the probably permanently unfit test does not apply, the Tribunal should not consider the period in which an application for re-registration cannot be made at the stage of deciding the nature of protective orders to be made.

6. [82]

   It was submitted that the Tribunal appears to have wrongly taken into account the fact that the practitioner could apply for re-registration in 18 months’ time in determining to cancel her registration. This was an irrelevant matter.

7. [83]

   The respondent submitted that the Tribunal did not take into account the 18 month period in which application for re-registration was prohibited in deciding to make a cancellation order. The respondent submitted that the Tribunal’s reasoning reveals the exercise of its discretion in the following steps, namely that it:

   1. (1)

      formed the view that the appellant “is not currently able to practice medicine safely”, at [141];

   2. (2)

      noted that deterrence is a relevant factor, albeit of lesser significance, at [142];

   3. (3)

      acknowledged that the appellant asserted that she had learnt from her mistakes, but found there was no evidentiary basis on which it could support her assertions, at [143];

   4. (4)

      observed that even though the appellant had acknowledged her guilt, the matters she raised in mitigation in fact strengthened the case for professional misconduct, at [144];

   5. (5)

      observed that the appellant had not discharged her burden of persuading the Tribunal that she had gained the necessary insight and now practises medicine in a safe manner, at [145]-[146];

   6. (6)

      found, on the evidence before it, that she is unable now to practise safe medicine, and was unlikely to be able to do so in the near future, at [147];

   7. (7)

      considered whether lesser protective orders would be appropriate, but found that they did not “reflect the seriousness and extent of the professional misconduct”, at [148]-[149], and

   8. (8)

      concluded “in all the circumstances” that an order of cancellation was appropriate, at [149].

8. [84]

   The respondent submitted that the Tribunal’s exercise of discretion in imposing cancellation was orthodox and did not take into account that she could apply for re-registration after an appropriate time.

9. [85]

   The respondent submitted that even if this Court considered that the Tribunal did take into account the period before re-registration could be applied for, this is not an irrelevant consideration such that it constitutes legal error. It was submitted that the statutory scheme expressly provides for re-registration; taking it into account would not be an irrelevant consideration (so long as the paramount consideration of the Tribunal is the protection of the health and safety of the public).

10. [86]

    The Tribunal did undertake the two-stage decision-making process described above at [77], that the appellant submitted was the correct approach. That approach to the exercise of its discretion is apparent in its reasons at [141]–[147] where the Tribunal set out its detailed findings over several paragraphs before concluding at [149] that:

11. [87]

    After making these findings, and concluding that cancellation of the practitioner’s registration should be ordered, the Tribunal addressed the power in s 149C to impose a time before which an order for re-registration could be sought at [150]:

12. [88]

    The Tribunal was permitted by s 149C(7) to identify a period of a time during which a re-registration application could not be made. Doing so indicated the seriousness, from the Tribunal’s perspective, of the conduct. A practitioner wishing to challenge that period may do so by way of appeal. Contrary to the appellant’s submission, a time fixed under s 149C(7) does not necessarily mean that the Tribunal has formed a view that things will have changed by the end of the period which has been fixed. The Tribunal is permitted by s 149C(7) to make clear in its orders the seriousness with which it views the conduct of the practitioner reflected in the complaints which have been proven. Such an order plays a part in the general deterrence reflected by the order.

13. [89]

    Ground 1A should be dismissed.

Ground 2A

1. [90]

   Ground 2A provides that the Tribunal failed to take into account relevant considerations, namely, evidence concerning the appellant’s current practise of medicine, and the steps taken by her towards rehabilitation.

2. [91]

   The appellant submitted that the Tribunal had fallen into legal error in failing to deal with substantial and consequential evidence the appellant had led on two subjects:

   1. (1)

      evidence of education and training undertaken by the practitioner; and

   2. (2)

      evidence contained in a letter from a Dr Fang, who acted as a mentor to the practitioner from 13 July 2016.

3. [92]

   In identifying the alleged failure to take into account evidence led by the practitioner as an error of law, the appellant relied upon the decision of Robertson J in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 where his Honour held at [111]-[112]:

4. [93]

   Regarding the appellant’s current practise of medicine, the appellant submitted that the Tribunal had misunderstood the steps she had taken towards rehabilitation. The appellant submitted that she had set out in her statement a list of 11 educational activities she had undertaken, and that the Tribunal included a summary of this evidence in its reasons. Accordingly, it was submitted that the Tribunal’s subsequent finding that she had only undertaken the Monash University course was in error. This error was said to be material to the Tribunal’s determination, as rehabilitation steps provided evidence of the appellant’s insight into her misconduct and evidence of her willingness to remedy that conduct.

5. [94]

   The second complaint made by the appellant was that the Tribunal failed to take into account a letter dated 2 September 2016, tendered without objection from her mentor, Dr Allen Fang. This letter was Exhibit B at the Tribunal’s hearing. The contents of the letter are as follows :

6. [95]

   The appellant submitted that the Tribunal’s conclusion that there was “no specific evidentiary material” supporting her assertion that she had learned from her past mistakes was an error, since Dr Fang’s letter clearly provided that support. It was submitted that the error was important and material to the Tribunal’s decision because Dr Fang’s letter “constituted not just evidence of reformed and safe practice but was corroborative of the appellant’s evidence that she had established a mentor relationship with Dr Fang”. The appellant submitted that the Tribunal’s failure to take this into account led directly to the conclusion that she was not currently able to practise medicine safely, and therefore her registration should be cancelled.

7. [96]

   Regarding the steps taken by the appellant towards rehabilitation, the respondent pointed to the express references by the Tribunal to the further education, information-acquiring and training undertaken by the practitioner . The respondent emphasised that the practitioner accepted, at [23] of her written submissions in this Court, that a summary of the evidence she gave on these topics is set out in the Tribunal’s reasons for decision at [89]–[90].

8. [97]

   The respondent submitted that the Tribunal commented on the timeframe during which the Monash course was completed, but did not suggest that this was the only training which the appellant had undertaken. Rather, the Tribunal focused on the fact that the appellant’s ability to practise medicine safely had not been addressed in any of the courses she had taken, at [141] of the Tribunal’s findings.

9. [98]

   The Tribunal did take into account the steps the appellant had taken in rehabilitation, but rejected the proposition that those steps had adequately addressed the serious issues demonstrated by the proven complaints.

10. [99]

    Regarding Dr Fang’s letter, the respondent submitted that there were inconsistencies between the appellant’s written statement, Dr Fang’s letter and the appellant’s oral evidence about the extent and nature of the mentoring relationship between Dr Fang and the appellant. It was submitted that the evidence revealed that the mentoring had taken place no more than five times before the hearing on 5 September 2016.

11. [100]

    The respondent emphasised that the appellant did not refer to Dr Fang’s mentoring in closing written submissions and only briefly in closing oral submissions.

12. [101]

    It was submitted that the Tribunal did take into account Dr Fang’s evidence by referring to the mentoring relationship between Dr Fang and the appellant, yet nonetheless found that the evidence of Dr Fang did not sufficiently touch upon matters to provide support for the appellant’s assertions. The respondent asserted that the Tribunal considered and weighed the evidence of the appellant’s practise of medicine at the date of its determination and found that it was unable to conclude that she was currently practising medicine safely. It was submitted that this is a finding of fact which does not raise a question of law, and it is a matter for the Tribunal of fact to determine the appropriate weight to be given to the relevant factors (Peko-Wallsend at 41).

13. [102]

    If the Court concluded that Dr Fang’s letter was not taken into account by the Tribunal, it was submitted that the letter was not important evidence. It was, on its face, bare assertion, bereft of reasoning or supporting material.

14. [103]

    In Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9 at [65], this Court (per Basten JA with whom McColl and Simpson JJA agreed) accepted as correct the reasoning of Robertson J in SZRKT which held, inter alia, that to ignore or overlook apparently credible and relevant information, which might support an essential step in the reasoning process if the claim were to be upheld, may itself constitute a constructive failure to exercise the function conferred on the Tribunal.

15. [104]

    SZRKT has been approved by the Full Court of the Federal Court in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114 at [70] and in Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [47]-[54] and is consistent with the decision of the High Court in Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1: see the discussion of this topic in Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 6th ed, 2017) at [4.770].

16. [105]

    In Torbey Investments at [66] the Court also sounded a note of caution about the extent of the principle explained in SZRKT:

17. [106]

    The appellant’s submission that the Tribunal did not take into account the steps taken by the appellant to rehabilitate and educate herself should be rejected. The Tribunal clearly referred to the education and training undertaken by the appellant. A summary of her evidence was included at [89]–[90] of the Tribunal’s decision:

18. [107]

    The appellant’s complaint is about the finding at [144]:

19. [108]

    All this finding does is to recite, as had earlier been found, that the appellant completed the Monash University course in October 2016. The appellant accepted that this complaint rested on a finding that paragraph [144] should be understood as encompassing a finding that no other course had been completed. Paragraph [144] of the Tribunal’s decision should not be construed in this way. In context, it should be understood as providing simply that there had been a long hearing, then a gap for submissions and there was a course completed in the gap.

20. [109]

    The letter from Dr Fang is in a different category. Although the mentoring relationship with Dr Fang was mentioned by the Tribunal in paragraph [90], the contents of the letter were not specifically adverted to by the Tribunal. The Tribunal said at [90]:

21. [110]

    This finding does not make clear that Dr Fang’s letter, as distinct from the appellant’s evidence about her being mentored by Dr Fang, was considered by the Tribunal. In paragraph [143] the Tribunal returned to this issue:

22. [111]

    I do not accept the respondent’s submission that the reference to “Dr Yang” in the penultimate sentence is a typographical error and should be a reference to “Dr Fang”. Dr Yang wrote a letter capable of meeting the description in the penultimate sentence. The Tribunal had elsewhere been careful to distinguish Doctors Yang and Fang. The absence of a specific reference to Dr Fang’s letter in the last sentence of paragraph [143] leads me to conclude that this evidence was overlooked by the Tribunal.

23. [112]

    I would not conclude, however, that Dr Fang’s letter was substantial and consequential evidence such that the Tribunal’s failure to refer to it was an error of law. This is for the following reasons.

    1. (1)

       The letter (set out at [94] above) simply contained bald generalisations. Dr Fang’s letter did not provide corroborative material of the appellant’s assertions that “she has learned from her past mistakes and no longer practices medicine in the manner which has given rise to these proceedings”.

    2. (2)

       The letter related only to a very limited aspect of the appellant’s work at Campsie, with 10 patients.

    3. (3)

       Dr Fang’s letter does not identify any particular records he reviewed or describe the expertise he applied in reviewing those records under the standard he described before baldly expressing the view that those records were compliant.

    4. (4)

       Dr Fang’s letter does not expose any reasoning process.

    5. (5)

       The fact that Dr Fang expressed bald generalisations about the appellant’s current compliance at Campsie was of no real consequence in this case.

24. [113]

    The relative unimportance of Dr Fang’s letter is underlined by the fact that counsel very experienced in this area who appeared for the appellant before the Tribunal did not mention Dr Fang’s letter at all in his closing written submissions and mentioned the topic of Dr Fang, but not the letter, only in passing in his oral submissions:

25. [114]

    Dr Fang’s letter was not substantial or consequential evidence in the case. The letter asserted that Dr Fang had read and complied with the Expert Witness Code of Conduct. The contents of the letter, however, revealed that this was not so. The letter did not disclose any reasoning process in expressing his opinion that the appellant’s medical record keeping was now in compliance with the Health Practitioner Regulation (NSW) Regulation and specifically Sch 2 of same. The Campsie medical records on which the opinion was said to be based were not produced or referred to, other than by bare assertion.

26. [115]

    The appellant’s submission that Dr Fang’s letter was “highly corroborative” of the appellant’s evidence should be rejected. The Court was not provided with the documents either doctor reviewed, but a comparison of Dr Yang's letter which contains brief, bald assertions about the practitioner’s “good clinical skills” with Dr Fang's letter makes it likely that the Tribunal would have dealt with Dr Fang's letter, had it not overlooked it, in the same way that it dealt with that of Dr Yang. That is, even if there was an error in the Tribunal not referring to the evidence of Dr Fang’s letter, I do not consider that if the error had not occurred the Tribunal’s decision might have been different: Joseph v NSW Commissioner of Police [2017] NSWCA 31 at [67] per Macfarlan JA with whom Basten and Ward JJA agreed.

27. [116]

    It is also relevant to bear in mind that the appellant herself explained that her record keeping at Dundas was quite different to her record keeping at Campsie. For example, the appellant accepted that:

28. [117]

    She gave quite detailed evidence about the different systems at Campsie as opposed to Dundas Valley. All of this evidence tends to confirm that Dr Fang’s letter was not material to any aspect of the determination of the respondent’s complaints.

29. [118]

    There was no error of law in the Tribunal’s failure to consider Dr Fang’s letter. Ground 2A is not made out.

Orders

1. [119]

   For the above reasons, I propose the following orders:

   1. (1)

      Appeal dismissed.

   2. (2)

      Appellant to pay the costs of the respondent as agreed or assessed.