Qasim v Medical Council of New South Wales

1. [1]

   BELL P: I agree with Brereton JA.

2. [2]

   BRERETON JA: The appellant Shaheen Qasim appeals from the dismissal by the Occupational Division of the NSW Civil and Administrative Tribunal (“NCAT”) on 19 December 2020 (“the 2020 Tribunal”) of her application to have her registration as a medical practitioner reinstated, such registration having previously been cancelled pursuant to an order made by that tribunal in 2014 (“the 2014 Tribunal”).

Background

1. [3]

   The appellant was first registered as a medical practitioner in New South Wales on 11 December 1985, having graduated with the degrees of Bachelor of Medicine and Bachelor of Surgery from the University of New South Wales. She was admitted as a Fellow of the College of Physicians, in Endocrinology, in 1996, and practised as an endocrinologist.

2. [4]

   On 27 October 2010, the respondent Medical Council of New South Wales (“the Council”) invited the appellant to respond to a letter which it had received from Professor Roger Smith, Professor of Endocrinology at the John Hunter Hospital, and which was countersigned by four other endocrinologists, expressing concerns about the standard of medical care she was providing in her practice of endocrinology, based on letters she had sent to referring general practitioners and patients. She responded in early December 2010, not only addressing the complaints but also making serious allegations against a number of others. The Council resolved to hold proceedings to consider taking action under s 150 of the (NSW) Health Practitioner Regulation National Law (“the National Law”), which provides for interim action to protect the public. Following a hearing on 22 December 2010, the Council suspended the appellant’s registration, and recommended that she be assessed by a Council-appointed psychiatrist before an application to lift the suspension was considered.

3. [5]

   The appellant was then assessed by Dr Anthony Samuels, psychiatrist, who reported to the Council on 27 April 2011, as follows: [1]

4. [6]

   On 19 October 2011, the appellant applied to the Council, pursuant to s 150A of the National Law, for a review of the suspension. Dr Samuels provided a further report at the request of the Council, dated 1 February 2012, concluding:

5. [7]

   The s 150A review proceedings were heard by the Council’s delegates on 24 February and 23 March 2012, when the Council confirmed the suspension of her registration.

6. [8]

   The Health Care Complaints Commission (“HCCC”) brought disciplinary proceedings in NCAT. The 2014 Tribunal had before it five complaints against the appellant, alleging:

   1. (1)

      unsatisfactory professional conduct, in that she had engaged in conduct that demonstrated that the knowledge or judgment possessed or care exercised by her in the practice of medicine was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or practice, in ten particulars, which referred to letters sent by the appellant which were said to contain statements which were alleged not to reflect current clinical knowledge, and one which related to an allegedly inappropriate prescription;

   2. (2)

      unsatisfactory professional conduct, in that she had engaged in conduct that demonstrated that the judgment possessed or care exercised by her was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, and had engaged in improper or unethical conduct relating to the practice or purported practice of medicine, in four particulars, two involving instances of inappropriate and unprofessional comments regarding patients in letters to general practitioners, and two involving allegedly unprofessional comments in a letter to a patient;

   3. (3)

      professional misconduct, in engaging in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation, or in more than one instance of unsatisfactory professional conduct that when considered together justified suspension or cancellation (particularised by reference to complaints (1) and (2));

   4. (4)

      impairment, in that she had a physical or mental impairment, condition, or disorder, namely a paranoid or delusional disorder of a sufficient nature and degree to impair her mental capacity to practise the profession; and

   5. (5)

      incompetence to practise the profession, in that she did not have sufficient mental capacity, knowledge, and skill to do so, as she suffered from an impairment, as particularised in complaint (4), which was of a sufficient nature and degree to impair her mental capacity to practise (and the particulars of complaints (1) and (2) were also relied on, individually and cumulatively).

7. [9]

   In the proceedings before the 2014 Tribunal, Dr Samuels gave expert opinion evidence to the effect that the appellant suffered from a paranoid delusional disorder which impaired her mental capacity to practise as a medical practitioner. His opinion was based in part on an assumption that she had a history of conflicts with others, which had involved extensive engagement in litigation, and disruption to her medical practice. In large part, those conflicts related to the appellant’s interactions with other occupants of an apartment building in Randwick, including Mr Igra, Dr Sutherland, and Dr Miller, about which there were a number of disputes (“the building disputes”), including in the (then) Consumer, Trader and Tenancy Tribunal, of which NCAT was the successor. Each of Mr Igra, Dr Sutherland, and Dr Miller, who had informed the HCCC of concerns they claimed to hold about the appellant’s fitness, gave evidence in the 2014 Tribunal proceedings.

8. [10]

   The 2014 Tribunal found all five complaints to be proven. On 2 May 2014, it made orders that the appellant’s registration be cancelled and that she was not permitted to apply for reregistration or review for a period of four years. [2] However, the order that her registration be cancelled was made only on the basis of complaint (5), namely that she was not competent to practise because of the impairment caused by her paranoid disorder. It was not made on the basis that she was not competent by reason of lacking sufficient knowledge and skill; nor was it made on the basis of the finding of professional misconduct: had complaints (1), (2), and (3) been the only complaints sustained, the Tribunal would have imposed conditions requiring further training and supervision. [3]

9. [11]

   The appellant appealed to this Court. Her challenge to the finding that complaint (3) (professional misconduct) was established was upheld, on the basis that the Tribunal’s reasons did not explain why any conduct which was the subject of complaints (1) and (2) was sufficiently serious to justify suspension or cancellation. [4] However, as the finding of professional misconduct did not provide the basis for the deregistration order, her success on this issue did not disturb the cancellation of her registration. [5]

10. [12]

    Thus the basis of the appellant’s deregistration was, solely, lack of competence by reason of an impairment, namely a paranoid or delusional disorder, of a sufficient nature and degree to impair her mental capacity to practise. Although allegations of sub-optimal treatment of patients were included in complaints (1) and (2), and were found proven, they did not provide the basis for the finding of unfitness on account of which her registration was cancelled.

11. [13]

    On 10 November 2019, the four-year preclusion period fixed by the order of 2 May 2014 having expired, the appellant applied to NCAT, pursuant to s 163A of the National Law, for reinstatement. After a number of directions hearings, the hearing of the application by the 2020 Tribunal commenced on 17 August 2020, continued on 18 August 2020, and concluded on 23 November 2020. On 19 December 2020, NCAT dismissed the application, with costs, and ordered that the appellant be precluded from making a further application for a further period of four years. [6]

The appeal

1. [14]

   On 11 January 2021, the appellant filed a Summons by way of appeal in the Common Law Division, containing eight grounds of appeal. On 17 March 2021, the proceedings were transferred to the Court of Appeal, presumably because the 2020 Tribunal was constituted by a panel of which the Principal Member was an Acting Judge of the District Court. On 7 April 2021, the appellant filed a Notice of Appeal stating six grounds of appeal which partly overlap with the eight grounds stated in the Summons. Pursuant to cl 29(2)(b) of Schedule 5 of the Civil and Administrative Tribunal Act 2013 (“the NCAT Act”), the appeal (being a “non-lawyer appeal”) lies as of right on any question of law, or with leave of the Court on any other grounds. In other words, without leave, the appeal is limited to a question of law.

2. [15]

   The grounds of appeal, and the appellant’s written submissions, are extensive, inclusive, and discursive. In the circumstances, rather than adopting too strict and technical an approach in directing and confining consideration to the enumerated grounds, it is preferable to approach the appeal as a matter of substance, by identifying the principles that the 2020 Tribunal was required to apply and the issues it was required to decide, and then examining whether there is identifiable material error in its decision.

Re-instatement applications: principles and issues

1. [16]

   The proceedings below were an application, by way of review under s 163A of the National Law, for reinstatement. Such an application is an inquiry into present fitness, and not a review of the original decision in which the practitioner was deregistered. Although, under earlier legislation, the Medical Tribunal could revisit the earlier decision, [7] the present legislation precludes that course, as s 163C of the National Law provides as follows:

2. [17]

   In conformity with s 163C(1), the task of the review tribunal on a reinstatement application is therefore to determine the appropriateness of an order reinstating the applicant, as at the date of hearing the application. [8] In performing that task, the Tribunal must have regard to the objectives and guiding principles of the National Law, which relevantly include the protection of the public by ensuring that only those practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered, [9] the paramount consideration being the protection of the health and safety of the public. [10]

3. [18]

   The position of an applicant for reinstatement is disadvantaged by reason that presumptions of fitness, which might otherwise arise from an absence of contrary suggestion, do not operate for the benefit of an applicant who has been deregistered on the basis of unfitness. [11] An applicant for reinstatement bears the onus of demonstrating that he or she can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner and presents no risk to the safety of the public and their confidence in the profession. [12]

4. [19]

   Thus the essential task of an applicant for reinstatement is to show that he or she is no longer unfit. In this case, given that the sole basis of the appellant’s deregistration was lack of competence by reason of an impairment, what the appellant had to demonstrate was that she was no longer unfit by reason of an impairment of such a nature and degree as impaired her mental capacity to practise. On that issue, she bore the onus of proof.

The 2020 Tribunal’s decision

1. [20]

   In the decision under appeal, the 2020 Tribunal reiterated that it was not its function to reconsider the circumstances which led to the cancellation of the applicant’s registration. [13] The Tribunal referred to Asar v Medical Council of New South Wales, in which the Tribunal had said: [14]

2. [21]

   Thus, the Tribunal correctly identified that it must be satisfied that the appellant is now “a proper person” to be registered, against the background of the finding of the 2014 Tribunal that she was not, by reason of lack of competence for want of sufficient medical capacity or knowledge and skill to practise by reason of her alleged psychiatric disorder.

3. [22]

   In addressing that question, the 2020 Tribunal observed that “virtually the entirety of the material relied upon by the applicant in this application consists of criticism of the 2014 Tribunal decision; a regurgitation of her claims made before the 2014 Tribunal; including claims that the 2004 decision relating to her strata building dispute was erroneous.” [15] It observed that the appellant criticised the Presiding Member of the 2014 Tribunal, members of the legal profession, and Dr Samuels, and made “scandalous remarks” concerning each, and that she had tendered case histories relating to patients which were the subject of the 2014 proceedings and provided voluminous statements concerning them. [16] The Tribunal then proceeded: [17]

4. [23]

   The Tribunal observed that the only recent medical evidence was that of Dr Samuels, who noted that there was no evidence that the appellant had received any psychiatric or psychological treatment since the initial hearing, and that his experience of the appellant on 8 July 2020 (in an exchange which preceded a proposed interview which did not proceed) supported the conclusion that her condition continued to exist. [18] The Tribunal concluded: [19]

5. [24]

   The Tribunal then observed that the appellant’s submissions and evidence before the Tribunal tended to confirm its conclusion (emphasis added): [20]

6. [25]

   Thus the Tribunal’s conclusion was that the appellant had not discharged her onus of showing that she was no longer unfit to practise by reason of impairment. The basis of that conclusion was that:

   1. (1)

      there was no evidence probative of the appellant’s current fitness;

   2. (2)

      the only recent evidence relating to the appellant’s fitness was that of Dr Samuels, who remained of the opinion that she was impaired; and

   3. (3)

      that view was confirmed by the Tribunal’s own observations.

7. [26]

   It is convenient to consider, in turn, those three elements of the Tribunal’s decision.

8. [27]

   When asked to identify what evidence there was before the 2020 Tribunal that she was a fit and proper person in 2020, the appellant referred to “testaments of the GPs, and the patient outcomes”, [21] and in particular:

   1. (1)

      a letter from Dr Nelapati, dated 14 December 2020, with reference to a patient EP, who Dr Nelapati had referred to the appellant in August 2009. Dr Nelapati wrote “I understand she was seen by Qasim once and appropriate advise [sic] was given at the time”. He stated that “Dr Qasim’s care was appropriate”;

   2. (2)

      a radiologist’s report dated 4 August 2011, relating to the same patient;

   3. (3)

      her results, recorded on a document entitled “American Endocrine Society Performance Report 2017”, with a total score of 91%, placing her in the 78th percentile of participants;

   4. (4)

      a statement of Mr Gregory Bartels, an accountant, dated 27 June 2020, who stated that the appellant had correctly diagnosed his condition and that he strongly supported her reinstatement so that he could seek ongoing treatment through her; and

   5. (5)

      a statement of Mr Douglas Simes, dated 23 June 2020, who stated that he was self-employed in the furniture business and strongly supported the reinstatement of the appellant, and otherwise dealt with matters relating to the building disputes.

9. [28]

   As it transpired, Dr Nelapati’s letter was not before the 2020 Tribunal; it post-dated the Tribunal proceedings. In any event, it did not address the question of current fitness, but in effect sought to contradict the 2014 decision, in which the appellant’s management of EP was one of the subjects of complaint and was found to be inappropriate. [22] Likewise, the radiology report in relation to the same patient does not provide evidence of the appellant’s current fitness.

10. [29]

    The 2017 American Endocrine Society Performance Report results, although somewhat stale, at least arguably relate to her current competence, but only in an academic sense; the finding of unfitness in 2014 was not made on the basis of lacking sufficient knowledge and skill.

11. [30]

    The appellant said that she saw Mr Bartels once, on a referral from a European orthodontist, for about half an hour in 2017; she said it was not a medical consultation. Regardless, Mr Bartels’ statement of support provides no evidence that the appellant is no longer impaired in the manner found by the 2014 Tribunal. Similarly, Mr Simes’ statement of support provides no such evidence.

12. [31]

    Accordingly, subject to the “Best Practice” material next discussed, the appellant adduced no evidence before the 2020 Tribunal capable of establishing that she was no longer impaired to a degree that made her unfit for medical practice.

13. [32]

    The appellant repeatedly submitted, before us as she had before the 2020 Tribunal, that the “patient outcomes” or “Best Practice” analysis was very important. This was a reference to an analysis of her management and the outcomes in respect of a number of patients whom she had treated prior to or during 2010, and who were the subject of complaint in the 2014 Tribunal proceedings that resulted in the cancellation of her registration. The purport of this analysis was to demonstrate the appropriateness of her treatment, through the outcomes ultimately achieved, and that it accorded with “Best Practice” guidelines. Before us, the appellant characterised the relevance of this material as showing that she was “way ahead” in her treatment of patients; in this respect, there was a hint of an argument that, at least in some respects, subsequent advances or ultimate outcomes had, retrospectively, shown that the managements for which she had been criticised had been successful and appropriate.

14. [33]

    The appellant complained that the 2020 Tribunal did not consider this evidence and argument. This raises a potential error of law, being a failure to take into account as a relevant consideration the appellant’s “Best Practice” evidence and argument, which I now consider.

15. [34]

    When the appellant sought to tender her “Best Practice” document before the 2020 Tribunal, early on the first day of the hearing, the Principal Member pointed out that “[o]n an application like this the law is quite clear and well established that we are not to go back into the previous findings of a Tribunal or a Court which has already dealt with the matter”, and that “[t]hose findings cannot be challenged now”. He said “I’m not going to hear argument on matters which related to the findings of the first Tribunal. That has been dealt with. That has gone to the Court of Appeal and the application now before us requires you to tell us and produce evidence before us which shows that any deficiencies or troubles which you experienced at that time have now been addressed.” When pressed as to the material on which she relied to demonstrate current fitness, the appellant referred to “volume 1, 107 to 115”. The document located at those pages was the “Best Practice” analysis document. The Principal Member emphasised, “[s]o what effectively you need to put before this Tribunal is evidence that you have now addressed the problems which were identified by the previous Tribunal in 2014”, and after looking at the “Best Practice” document continued, “[b]ut this relates to various patients” and “[w]e’re not dealing with them. I’ve made it very clear, doctor, we are not having anything to do with what the previous Tribunal considered”, concluding “[t]he law is very clear. This Tribunal is not authorised to go and revisit the findings in relation to those patients.” Throughout this exchange, the appellant had repeatedly endeavoured to rely on the “Best Practice” document. [23]

16. [35]

    At the end of that day, a further exchange took place, when the Principal Member asked the appellant whether there was any more material she wished to tender. The appellant said, “Well I know you don’t wish to visit the Best Practice that is the clear evidence of my competency in the management of those patients.” The Principal Member replied, “I have said that is not really relevant because it has already been dealt with that’s been appealed to the Court of Appeal …”. The appellant pressed the point and took the Tribunal, again, to her “Best Practice” document, to which the Principal Member said, “[t]he answer is no, the Tribunal will not be going there doctor.” The appellant was asked whether she wished to proceed the following day, and replied, “[i]f you are not considering any more material which I have you are not considering my Best Practice”. The Principal Member said, “[y]our Best Practice was considered”, and the appellant replied “[n]o, no, no, Best Practice is outcome has been determining in the last ten years not at the time”. [24] The exchange concluded: [25]

17. [36]

    As I understand it, that was a reference to the 2014 Tribunal as having rejected the appellant’s practice as not appropriate.

18. [37]

    While the position that the “Best Practice” material was irrelevant was firmly articulated by the Principal Member in the course of argument, the Tribunal’s reasons reveal that it received, and did not entirely disregard, it. In summarising the grounds of the application, the Tribunal noted that they included: [26]

19. [38]

    In cataloguing the evidentiary material proffered before it by the appellant, the Tribunal referred to her affidavit of 11 June 2020, attaching “reports relating apparently to patients of the applicant”. [27] That the Tribunal did not entirely disregard the appellant’s “Best Practice” material, although pointing out that it was unsupported by expert evidence, is indicated by the following passages in its decision: [28]

20. [39]

    Subsequently, the Tribunal said (emphasis added): [29]

21. [40]

    The asserted and apparent relevance of the “Best Practice” material was twofold: primarily, to contradict the findings of the 2014 Tribunal in respect of the patients to which it related; but also, to demonstrate that the appellant adhered to appropriate managements of patients.

22. [41]

    The essential question which emerged is whether the 2020 Tribunal was right to regard the “Best Practice” material as irrelevant, because it was precluded by law from revisiting the findings of the 2014 Tribunal. When the law was as stated in Rohatgi and Zaidi, [30] it would have been open to a review tribunal on a re-instatement application to review the findings and order of the original tribunal. However, as Mr Fraser submitted, Rohatgi and Zaidi were effectively overruled by National Law, s 163C(2), which precludes a review of the decision and findings of the earlier tribunal. The Tribunal was right to hold that the “Best Practice” material was irrelevant, insofar as it was to be used to contest the findings of the 2014 Tribunal.

23. [42]

    It is unnecessary in this case to determine whether s 163C(2) precludes consideration by a review tribunal in a reinstatement application of matters that were before the earlier tribunal, in a manner which does not involve impeaching the decision of the earlier tribunal. For present purposes, I am prepared to accept that, at least theoretically, the “Best Practice” material might have been relied on, not to contest the findings of the 2014 Tribunal, but independently to support an inference of present fitness by showing that the appellant’s historical treatment of patients complied with current “Best Practice” guidelines. If it were contended that, as a result of advances in medical knowledge in the meantime, historical cases could now be seen to have been appropriately managed, it would appear desirable that such material should be available to a review tribunal. However, in this case, the “Best Practice” analysis related to the very same patients whose management by the appellant had been found inappropriate by the 2014 Tribunal, and thus involved a direct challenge to the findings of that Tribunal, which was made impermissible by s 163C(2). Moreover, as the Tribunal observed, and as the respondent submitted, there was no expert evidence to support the proposition that hindsight supported the appellant’s management of those patients.

24. [43]

    More importantly, such evidence could not have availed the appellant in this case, because, as has been noted, the basis of her deregistration was, solely, lack of competence by reason of an impairment, namely a paranoid or delusional disorder, of a sufficient nature and degree to impair her mental capacity to practise. The allegations of inappropriate management of the patients included in complaints (1) and (2), though found proven, did not provide the basis for the finding of unfitness on account of which her registration was cancelled. What the appellant had to demonstrate to the 2020 Tribunal was not technical competence, but that she was not longer unfit by reason of impairment. The “Best Practice” material was not capable of doing that.

25. [44]

    Accordingly, the Tribunal did not err insofar as it treated the appellant’s “Best Practice” material as irrelevant to the issues which it had to consider. It follows that the Tribunal correctly held that the appellant had adduced no evidence to establish that the impairment found by the 2014 Tribunal had resolved or improved. In circumstances where, as the Tribunal repeatedly drew to her attention, that was the crucial issue, and one on which she bore the onus, the only decision the Tribunal could have reached was that the appellant had failed to establish that she was no longer so impaired as to be unfit for medical practice.

26. [45]

    However, the 2020 Tribunal affirmatively found that the appellant remained impaired. That finding was based on Dr Samuels’ evidence, reinforced by the Tribunal’s own observations.

27. [46]

    Dr Samuels, who had first reviewed the applicant in 2004, again in 2011, and again in 2012, provided a report dated 21 July 2020. On reviewing the documentary material, he observed that the appellant’s application for reinstatement appeared “disorganised”, and continued:

28. [47]

    Dr Samuels observed that there was no medical evidence that the appellant had received any psychiatric or psychological treatment since the 2014 Tribunal hearing; that her submission did not refer to the issue of impairment, which was central to her deregistration; and that the volume of repetitive material supplied by the appellant suggested “that little has changed in regard to her mental state”.

29. [48]

    Dr Samuels recorded that he saw the applicant on 8 July 2020, providing the following account:

30. [49]

    Dr Samuels responded to specific questions on which his opinion was sought, as follows:

31. [50]

    Dr Samuels considered that the impairment was likely to impact upon the appellant’s ability to practise; that she did not accept that she was impaired; and that at present, the prognosis seemed “poor”. He concluded:

32. [51]

    In oral evidence to the Tribunal, Dr Samuels said that more recent material provided to him reinforced his view that she has a very long-standing untreated paranoid psychotic illness, most likely schizophrenia. This conclusion was founded on what he characterised as illogical thought processes, grandiose thoughts, disordered thought form, irrelevancies and inability to filter out irrelevancies, inflexibility of thinking, and lack of insight and of judgment. He was of opinion that her condition had become more florid in recent years and that her mental state had deteriorated. He said that treatment with antipsychotic medication might have altered the course of her illness, but she now had a very severe psychosis. As to future treatment, he thought that the only option was a trial of antipsychotic medication, but that the appellant was resistant to accepting treatment. He thought it possible that there could be some improvement in her functioning over time, but he was doubtful about her returning to work as a medical practitioner, though there was a possibility of some improvement in her overall functioning if she received treatment.

33. [52]

    In response to a question from a member of the 2020 Tribunal, Dr Samuels said that there had been a major decline in her functioning, from around 2004, and continued (emphasis added): [31]

34. [53]

    In response to a further question from a member of the Tribunal, he gave this evidence (emphasis added): [32]

35. [54]

    Dr Samuels’ evidence was impugned by the appellant, as “lies on oath”, in the following respects:

    1. (1)

       he falsely claimed that he had a consultation with her on 8 July 2020;

    2. (2)

       he falsely stated that she had described having “seen two persons come through the ceiling”; and

    3. (3)

       he falsely stated that she had been “taken away by the police” and scheduled under one Dr Hume.

    4. (4)

       The appellant also complained that the 2020 Tribunal did not consider evidence she had supplied to contradict the opinions of Dr Samuels.

36. [55]

    As the above extracts show, with respect to the appellant’s attendance in his consulting rooms on 8 July 2020, Dr Samuels did not claim to have had a consultation with her, and did not suggest that an interview took place, on that date, but only that he saw her briefly, in the context of a planned consultation which did not proceed. There was a brief interaction between Dr Samuels and the appellant, as a result of which he formed the impression, referred to in his evidence, that she seemed to be perplexed and to have difficulty in understanding the conversation. There was no factual controversy about those events, and no basis for suggesting, let alone finding, that Dr Samuels’ evidence was false in this respect.

37. [56]

    As to the assertion that the appellant had previously referred to “persons coming through the ceiling”, in cross-examination Dr Samuels gave this evidence: [33]

38. [57]

    The appellant returned to this point later in the cross-examination: [34]

39. [58]

    Thus, Dr Samuels’ evidence was not that the appellant had told him in consultation that she had “seen two persons come through the ceiling”, but that he had seen documentation recording that she had told others that people had come through her roof, and that the appellant had also maintained such an assertion to him in the course of cross-examining him in the 2014 Tribunal proceedings. The transcripts of the 2014 Tribunal proceedings were not in evidence before the 2020 Tribunal. However, there was in evidence the reasons for decision of the National Law, s 150, proceedings in 2010, which record:

40. [59]

    As to the assertion that she had been scheduled, Dr Samuels accepted in cross-examination that he might have been mistaken in that respect: [35]

41. [60]

    As to the appellant’s complaint that the 2020 Tribunal did not consider evidence she had supplied to contradict the opinions of Dr Samuels, reference has been made above to the evidence that was adduced by the appellant, including her “Best Practice” evidence, none of which contradicted the opinions of Dr Samuels as to her current diagnosis, prognosis, or impairment. As has been mentioned, she adduced no evidence on that issue, nor that she had had, or sought, any relevant treatment.

42. [61]

    The Tribunal was entitled to rely on Dr Samuels’ uncontradicted evidence to support the conclusion that the appellant remained impaired. While he conceded that he may have been mistaken about whether she had been scheduled in the past, this did not detract from his opinion of her current condition and impairment. Moreover, in the absence of evidence probative of fitness adduced by the appellant, rejection of Dr Samuels’ evidence would not have filled the void; there would still have been no probative evidence that she was no longer impaired.

43. [62]

    In addition to Dr Samuels’ evidence, the Tribunal brought to bear its own expertise, stating that Dr Samuels’ opinions were consistent with its own impressions having seen the appellant and having read and heard her evidence and submissions. [36] The Tribunal is a specialist tribunal, including two medical members, one of them a psychiatrist, and was entitled to bring to bear its own expertise, in this way.

44. [63]

    The appellant adduced no evidence to prove that she was no longer unfit by reason of impairment. Dr Samuel’s evidence, on which the Tribunal was entitled to rely, was to the effect that she remained impaired. The Tribunal formed its own impression, on which it was also entitled to rely, to the same effect. It does not appear, even arguably, that the Tribunal’s conclusion, that the appellant had failed to show that she was no longer unfit by reason of impairment, was wrong.

The remaining grounds

1. [64]

   Below I endeavour to consider, briefly, the grounds in the Summons and the Notice of Appeal, to extent that I have been able to distil them, and insofar as they have not already been addressed.

2. [65]

   First, many of the grounds were, in substance, complaints that the appellant had been wrongly “suspended” as a result of the National Law, s 150, proceedings, or wrongly deregistered pursuant to the 2014 proceedings. The appellant’s grounds and submissions were in large part directed to endeavouring to demonstrate error in the decision of the 2014 Tribunal, from which she had already unsuccessfully appealed to this Court. This reflected the position she had adopted before the 2020 Tribunal, which observed: [37]

3. [66]

   As I have endeavoured to explain, by reason of National Law, s 163C(2), it was not permissible on the review application for the 2020 Tribunal, from which this appeal is brought, to review the findings of the 2014 Tribunal. This includes the findings of “clinical incompetence”, which the appellant sought to challenge by reference to the “patient outcomes”. However, even a successful challenge to those findings would not have availed her, because the finding of unfitness which the appellant had to overcome was not founded on “clinical incompetence”, but on impairment alone. The Tribunal was right to refuse to embark on a review of the decision and findings of the 2014 Tribunal.

4. [67]

   The appellant complained that the Tribunal relied on, and failed to investigate the motives of, “lay people” who had allegedly provided false evidence. This refers to the evidence given to the 2014 Tribunal by Mr Igra, Dr Sutherland, and Dr Miller. The appellant contends that these individuals were antagonistic to her, including by reason of the building disputes in which they were involved, and that their allegations ought not have been believed. However, whatever may have been the position in connection with the 2014 proceedings, these “lay people” were not witnesses in the 2020 proceedings, and it is not apparent how there could have been any error on the part of the 2020 Tribunal in failing to scrutinise their motives.

5. [68]

   The appellant complained of “procedural irregularities”, referring to “the poor conduct of the NCAT members and the NCAT panels, who were engaged in conduct and made omissions intended to deny natural justice”. First, the appellant complains that the principal member “denigrated her” during the hearings, and did not read her material. This complaint appears to be directed, at least in substantial part, to the 2014 Tribunal. Insofar as it relates to the 2020 Tribunal, it appears to refer, at least chiefly, to the manner in which the “Best Practice” evidence was dealt with, which has been described above. While the Principal Member firmly articulated the position that the material was not relevant, and pressed the appellant to address the issue of current fitness, that has to be seen in the light of her apparent refusal to accept the ruling on relevance, and to address the question of current fitness. In fact, the Principal Member was endeavouring, albeit without success, to assist the appellant to focus on what was relevant and might advance her case.

6. [69]

   Secondly, she complains that she was denied the right to cross-examine, or to have her “key witness” testify. In the 2020 Tribunal proceedings, the appellant called Mr Simes and Mr Bartels, for cross-examination; she gave evidence herself, and was cross-examined; she was permitted to cross-examine Dr Samuels, who was called by the Council; and she did not seek to call any other witness. Thus these complaints appear to relate to the 2014 Tribunal proceedings. In particular, the complaint about not being permitted to have her “key witness” testify refers to a proposal by the appellant, in the course of the 2014 Tribunal proceedings, to call Professor Jack Carmody as a witness; so far as can be ascertained from the available material, the 2014 Tribunal doubted the relevance of his evidence. In any event, neither of these complaints could be made of the proceedings before the 2020 Tribunal, and they are incapable of amounting to error by the 2020 Tribunal.

7. [70]

   Thirdly, in her reply submissions, the appellant listed numerous matters – exceeding 100 in number – which she complained were not referred to in the Tribunal’s decision. The omissions complained of included “engineering reports, CTTT orders, the basis of notifications to MCNSW and appointment with Samuels in September 2004”. The engineering reports and CTTT orders are apparently related to the building disputes, and are invoked to buttress and corroborate the appellant’s position vis-a-vis Mr Igra, Dr Sutherland, and Dr Miller, who, as has been noted, were witnesses before the 2014 Tribunal, but not before the 2020 Tribunal. In substance, this involves an impermissible attempt to impeach the decision of the 2014 Tribunal, and is not demonstrative of error in the decision of the 2020 Tribunal. Moreover, these matters were not relevant to whether the appellant had proved, in 2020, that she was no longer impaired. The omissions complained of were not material, because they could not have affected the Tribunal’s ultimate decision that there was no evidence that the appellant was no longer unfit by reason of impairment.

8. [71]

   The appellant complained that, in her appeal to this Court in 2015, “the regulator” (presumably, the HCCC) misled the Court, that that information was provided to the 2020 Tribunal, and that the 2020 Tribunal did not consider it. However, even if the HCCC had misled the Court of Appeal in 2015 (as to which it is unnecessary to make any finding), that would not have been relevant to the issues before the 2020 Tribunal, and would rightly not have been considered by it. Nor could this demonstrate error in the conclusion of the 2020 Tribunal that there was no evidence that the appellant was no longer unfit by reason of impairment.

9. [72]

   Finally, one of the grounds in the notice of appeal was:

10. [73]

    The appellant contends that files relating to the patients who became the subject of complaint in the 2014 proceedings “disappeared” from her practice, and were somehow obtained by the complainant Dr Roger Smith and/or the HCCC, and that the HCCC and its witnesses were untruthful or evasive in explaining, in the 2014 Tribunal proceedings, how they had obtained this material. This complaint was dealt with by the 2014 Tribunal, as follows: [38]

11. [74]

    Whatever its potential relevance might have been in the 2014 Tribunal proceedings, the question whether the patient files were missing, or had been stolen, and if so who was implicated, had no potential relevance to the issues before the 2020 Tribunal, and would rightly not have been considered by it.

Conclusion

1. [75]

   Although there are difficulties in distilling, from the appellant’s grounds of appeal and submissions, identifiable alleged errors, of law or of fact, a review of the substance of the issues and decision of the 2020 Tribunal reveals that:

   1. (1)

      the Tribunal correctly held that it was not open to it to review and reconsider the decision of the 2014 Tribunal;

   2. (2)

      the Tribunal correctly held that the appellant had adduced no evidence to establish that the impairment found by the 2014 Tribunal had resolved or improved, such that she was no longer unfit by reason of impairment;

   3. (3)

      the Tribunal did not err insofar as it treated the appellant’s “Best Practice” material as irrelevant to the issues which it had to consider; and

   4. (4)

      the Tribunal did not err in regarding Dr Samuels’ opinion that she remained impaired as reliable, reinforced as it was by the Tribunal’s own impression, which it formed and on which it was, as a specialist tribunal, also entitled to rely, to the same effect.

2. [76]

   The appellant bore the onus of demonstrating to the 2020 Tribunal that she was no longer impaired and was now a fit and proper person to practise medicine. Although, in circumstances where Dr Samuels’ opinion as to the appellant’s current condition was not contradicted, and was reinforced by the Tribunal’s own observations, the Tribunal was entitled if not bound to accept it, even if no evidence had been adduced from Dr Samuels, there was no evidence to prove the essential issue of current fitness. Thus, even absent the evidence of Dr Samuels, the appellant’s application for reinstatement was bound to fail.

3. [77]

   The conclusion that there was no evidence that that the appellant was no longer so impaired as to be unfit would not be different, even if Dr Samuels’ opinion were entirely disregarded. Nor would it be affected by any other of the numerous complaints raised by the appellant. There was, therefore, no error in the Tribunal’s ultimate conclusion that the appellant had not shown that she did not remain so impaired as to be unfit to practise. The appeal must be dismissed, with costs.

4. [78]

   EMMETT AJA: I agree with Brereton JA.