LINDSAY v NSW MEDICAL BOARD

HIS HONOUR : In these proceedings, the plaintiff, a registered medical practitioner, claims declaratory and other relief against the defendant, the New South Wales Medical Board (referred to in this judgment as “the Board” ) in respect of a decision and order made by the Board’s delegates on 18 December 2007 suspending him for a period of eight weeks. The plaintiff contends that the order made was void and of no effect.

The plaintiff proceeded by way of the Further Amended Summons filed pursuant to leave granted on 31 January 2008 and as further amended on that date. The proceedings were listed for final hearing on an urgent basis and were heard on Thursday 31 January and Friday 1 February 2008. Introduction

The jurisdiction the plaintiff, by his amended summons, sought the Court to exercise is that referred to in s.69 of the Supreme Court Act 1970 commonly referred to as the jurisdiction to grant relief in the nature of prerogative relief. Mr J M Ireland QC, with Mr P K Bruckner of counsel appeared on behalf of the plaintiff.

Ms K Richardson, of counsel, who appeared on behalf of the Board, submitted that:- (a) It was an abuse of power to concurrently commence and prosecute proceedings in the Medical Tribunal and in this Court on the same subject matter, namely, by instituting a statutory appeal to the Medical Tribunal and, at the same time, seek judicial review in this Court. Both proceedings were initiated on the same date. (b) That, in any event, on the authorities, the availability of an alternate statutory appeal remedy warrants a refusal by this Court to conduct judicial review at all as a matter of discretion. Chronology of events

The Board, by its duly appointed delegates, Dr Sarah Mares and Dr Keith Edwards, conducted an inquiry for the purposes of s.66 of the Medical Practice Act 1992 (the “Act”).

On 14 December 2007, the delegates conducted a hearing, in the nature of an interview, with the plaintiff (referred to below as the “hearing” ).

On 18 December 2007, the delegates made a decision under s.66 of the Act to suspend the plaintiff from practising medicine for a period not exceeding eight weeks. The eight week period commenced on 19 December 2007 and will expire on 12 February 2008.

On 13 December 2007, the Duty Judge (James J) gave judgment on an urgent basis on an application by summons by the plaintiff. Substantially, the plaintiff sought orders which would, if granted, have had the effect of preventing the delegates proceeding on 14 December 2007.

His Honour referred to proceedings in respect of the complaints in question in these proceedings having been the subject of proceedings in the Medical Tribunal originally fixed for hearing in February 2008 but subsequently, on the plaintiff’s application, changed to April 2008.

His Honour referred to correspondence and background matters in relation to the Inquiry to be held on 14 December 2007. These included the fact that the plaintiff’s solicitor, Mr Solari, had requested particulars. The principal oral arguments presented related to the question of particulars and legal representation.

James J concluded, having regard to the steps taken by the Board, that the steps it had taken were sufficient in the circumstances. His Honour referred to the importance of the nature of inquiry. In doing so, reference was made to the fact that the delegates could not take action under s.66 of the Act and the inquiry was a preliminary step, an observation that may have been based on submissions that were intended to convey the point that the delegates were not undertaking a fact finding role. The present hearing proceeded upon the basis that, if properly delegated, the delegates, in fact, had the power to take action under s.66

The present proceedings were initially commenced by the amended summons filed on 21 December 2007. The amendment was made to the summons originally filed on 13 December 2007.

On 21 December 2007, the plaintiff also filed appeal proceedings in the Medical Tribunal, pursuant to s.95 of the Act.

On 7 January 2008, the Board, by its delegates, provided written reasons for their decision given on 18 December 2007. The statutory scheme (a) The statutory right of appeal

Part 6, Appeals and review , Division 4 entitled “Appeal against suspension by Board” provides in s.95 for a right of appeal in the following terms.

Section 97 of the Act provides:- “97(1) On an appeal, the Tribunal may by order terminate, vary or confirm the period of suspension or revoke, vary or confirm the conditions, as it thinks proper. (2) The Tribunal’s order must not cause a suspension or conditions imposed by the Board to have effect beyond the day on which any related complaint about the person is disposed of.

Section 98 provides:- “98. An appeal under this division does not affect any suspension or conditions with respect to which it has been made until the Tribunal makes an order on the appeal.”

Ms Richardson submitted that it was apparent from the language of s.97 – given that the Tribunal thereby has the express power to make its own decision whether to terminate, vary or confirm the suspension – that the nature of the appeal before the Tribunal is a de novo hearing on both the merits as well as in relation to questions of law (Board’s written submissions, 23 January 2008, paragraph 14).

The Tribunal is constituted under s.147 of the Act. Under s.148(1), the Governor may appoint a Judge of the District Court as Chairperson of the Tribunal and may appoint one or more judges of the District Court as Deputy Chairpersons of the Tribunal. Upon the Chairperson being informed under s.147(1) of an appeal made to the Tribunal, in accordance with the Act, the Chairperson is then to nominate himself or herself or a Deputy Chairperson to sit on the Tribunal for the purpose of the hearing of an appeal: s.147(3).

By that provision, for the purpose of hearing an appeal, the Tribunal is also to consist of two registered medical practitioners having such qualifications as are prescribed and one lay person in accordance with s.147(3).

By s.154 of the Act, the decision of the presiding Chairperson or Deputy Chairperson on any question of law or procedure arising during an appeal, is the decision of the Tribunal for the purpose of the appeal.

Section 161(1) of the Act provides that the Tribunal is to conduct an appeal as it thinks fit. Section 161(4) provides that Schedule 2 has effect with respect to the hearing of any appeal by the Tribunal.

Clause 1 of Schedule 2 importantly provides:- “1. In proceedings before it … the Tribunal is not bound to observe the rules of law governing the admission of evidence, but may inform itself of any matter in such manner as it thinks fit.”

Clause 2 of Schedule 2 provides:- “2(1) … the Chairperson or Deputy Chairperson of the Tribunal may summon a person to appear in proceedings before … of the Tribunal, to give evidence and to produce such documents (if any) as are referred to in the summons.”

Clause 2(3) empowers the Tribunal in proceedings before it to take evidence on oath or affirmation.

Clause 10(1) of Schedule 2 provides:- “It is the duty of … the Tribunal … to hear … appeals under this Act and to determine those … appeals expeditiously.” (b) Extension of suspensions

Section 67 of the Act provides:- “A period of suspension imposed by the Board under this Division may be extended from time to time by the Board by order for a further period or further periods, each of not more than 8 weeks, but only if:- (a) the extension has been approved in writing by the Chairperson or a Deputy Chairperson, and (b) the complaint about the practitioner has not been disposed of.”

By s.95(1) of the Act:- “A person may appeal to the Tribunal:- (a) against a suspension or extension of a suspension by the Board under Part 4 … …”

Ms Richardson made submissions on the matter of “Abuse of process – concurrent proceedings” .

The course adopted in the hearing of the present proceedings was to hear full argument on the grounds relied upon by the plaintiff in seeking orders in the nature of prerogative relief rather than to confine the disposition of the proceedings to the “abuse of process” point.

As the parties have observed, there are only a limited number of decisions of this Court to date on the provisions of s.66 of the Act. In light of that fact and that the proceedings had been listed on an urgent basis and the parties had prepared extensive written submissions on all issues, I determined that all issues, substantive and discretionary, should be heard and determined.

That course, I considered, would ensure that if it was shown that there existed “exceptional circumstances” in this case, then the general disinclination of this Court to permit judicial review where there is an alternate statutory appeal to a specialist Tribunal may be displaced. The decision of the Court in X v NSW Medical Board (1993) 32 ALD 330 provides one example of circumstances that may arise and which would enable this Court to intervene in relation to an order made under s.66 of the Act. Background

The plaintiff is presently aged 42 years (date of birth 20 September 1965). He graduated with a degree of Bachelor of Medicine, Bachelor of Surgery from the University of Sydney in 1989.

He was first registered to practice medicine in New South Wales on 28 December 1988 and he established his own practice in Sydney in December 1996.

On and from July 2001, the plaintiff’s registration as a medical practitioner has been subject to various practice conditions. In that respect, the following are noted:- • On 23 July 2001, the Professional Standards Committee found the plaintiff guilty of unsatisfactory professional conduct. Conditions were imposed on his registration requiring the auditing of surgical procedure records, the auditing of medical records and inspection of his premises. • On 29 November 2002, the same conditions were re-imposed on appeal to the Medical Tribunal. An appeal to the Court of Appeal of New South Wales was dismissed. • On 12 August 2004, the Medical Tribunal found the plaintiff guilty of unsatisfactory professional conduct. Conditions were imposed requiring the auditing of medical records and “supervision to provide support and to monitor Dr Lindsay’s capacity to practice medicine safely” . • On 8 November 2005, the Court of Appeal of New South Wales delivered judgment in which the plaintiff was partly successful insofar as the supervision conditions were narrowed to “supervision … to provide support and to monitor Dr Lindsay’s keeping of medical records for his patients” .

As at the date of the inquiry conducted by the delegates of the Board, the plaintiff was registered in the General Category with conditions as imposed by the Court of Appeal on 8 November 2005. Background to the Inquiry

The Board claimed that it received 55 complaints in respect of the plaintiff’s medical practice, some dating back to 1998, but the majority having been made since 2000. Its position before the delegates and in these proceedings was that, during the years 2005, 2006 and 2007, complaints were received concerning the plaintiff’s practice of medicine, either by the Board or the Health Care Complaints Commission (HCCC) at a rate of over one a month, the most recent complaints having been made on 18 October 2007 and 27 November 2007.

A formal complaint has been referred to the Medical Tribunal and a 12-week hearing has been fixed to commence on 28 April 2008. It was amended on several occasions to include additional complaints. The formal complaint comprises five complaints involving 24 patients, two employees and five medical practitioners and 20 concerning the plaintiff’s patient medical records. The Further Amended Notice of Complaint was before the delegates in addition to other material including reports of Dr Allnutt, psychiatrist, dated 6 and 21 March 2007. A copy of the full list of documents that were provided to the plaintiff and the delegates was annexed to the affidavit of the plaintiff’s solicitor, Mr Kelvin Solari sworn 13 December 2007, and marked “KS4”.

The determination of the delegates was set out at p.30 thereof in the following terms:- “ Determination After carefully considering all the material before the Inquiry and for the reasons outlined in this written decision, the delegates are satisfied that it is necessary for the purpose of protecting the life or physical or mental health of any person to suspend Dr Lindsay from practising medicine for a period of 8 weeks. Pursuant to s.66(1)(a) of the Act with effect from 00.01 on 19 December 2007, the delegates ordered that Dr Lindsay be suspended for a maximum period of eight weeks.”

In accordance with the provisions of the Act, in particular s.66B, the Board referred the matter to the HCCC for investigation as a complaint. There is an issue as to whether the referral complied with s.66B(1) of the Act.

The background to the inquiry was that the Board’s Conduct Committee at a meeting held on 13 November 2007, determined to hold an inquiry pursuant to s.66 of the Act in relation to the plaintiff. At that meeting, the Committee considered the HCCC’s investigation report into a complaint made by a patient (referred to in these proceedings as “Mrs F” ) concerning treatment she had received from the plaintiff in April 2007.

In the written reasons, the delegates referred to the Committee’s concern at what was said to be “the seriousness of the complaint by (Mrs F)” noting that action under s.66 of the Act may be warranted.

The delegates proceeded by recording the following matters that the Committee had noted (based on allegations made):- • “The patient withdrew her consent during the procedure. Dr Lindsay continued with the procedure without consent . • The current complaint is considered in the light of matters raised in the substantial complaints in relation to Dr Lindsay’s practice of medicine and his health, which have already been referred to the Medical Tribunal. • If proven, there is a likelihood that the complaints before the Tribunal may result in the suspension or de-registration of Dr Lindsay or the placing of conditions on his registration. • The date for the Medical Tribunal hearing has been delayed.”

The delegates then noted in their report that these matters raised significant questions “… concerning whether immediate action by the Board is necessary for the purpose of protecting the life or physical or mental health of any person” .

Dr Mares is a psychiatrist and Dr Edwards is an emergency physician. They were appointed to be the delegates of the Board by notice dated 26 November 2007. Further reference will be made to the delegation of authority below in the context of submissions made as to the validity of the appointment. The delegates’ decision

The delegates made reference in their reasons for decision to the documents made available to them and to the plaintiff. In an early section of the report (p.4), the delegates referred to the provisions of s.66 and recorded:- “The scope of the Inquiry is therefore whether such action needs to be taken after carefully considering the contents of the documents before the delegates and the oral evidence of Dr Lindsay at the Inquiry. Neither the Board nor the delegates are making any initial allegation, charge or complaint against Dr Lindsay to initiate this Inquiry. As such, the delegates could not particularise any allegation or complaint. It was clarified that the Inquiry was not going to concern itself with the details of the complaints that had been referred to the Medical Tribunal (see behind Tab 7). It was accepted that Dr Lindsay contests the facts of all of the complaints that have been referred to the Medical Tribunal, hence the 12 week hearing that is set down to commence on 21 April 2008 (Tab 8), and the delegates proceeded with the Inquiry on this understanding.”

In the “discussion” in the reasons for decision (pp.8 to 9), the delegates refer to their identification of a number of “issues of concern” and it is stated “… none of which can be considered in isolation” .

The reasons then record the following:- “The issues of concern, in no particular order of priority and which will be discussed in more detail below, are:- • complaints: number of complaints; similarities between complaints; and apparent escalation of complaints; • the delegates’ observations of Dr Lindsay during the Inquiry; • Dr Lindsay’s practice of medicine; • Dr Lindsay’s possible impairment; • whether the imposition of additional conditions on Dr Lindsay’s registration would provide sufficient protection. The delegates note that whilst some of these issues can simply be gleaned as facts from the documents before the Inquiry … and also whilst any one issue discussed below may not provide sufficient concern in itself to warrant suspension, the threshold of concern that necessitated action being taken under s.66 was reached once all of the issues were considered together along with the opportunity to consider Dr Lindsay’s responses at the Inquiry and to observe and listen to Dr Lindsay himself. Although individually set out below for the purpose of its discussion, these matters cannot, and should not, be considered in isolation. It is the combination and interaction of all the issues which raise sufficient concern for the delegates to be satisfied that it is necessary to take action under s.66.”

The terms of s.66 and the nature of the function to be performed pursuant to its provisions are concerned with the question as to whether it is necessary for the Board to take one or other form of preliminary action as specified in s.66(1)(a) or (b) in the interests of protecting the life or physical or mental health of patients.

The circumstances in which a question under s.66 arises may not permit a full or final inquiry to be undertaken into the merits of complaints made with respect to a registered medical practitioner before action is taken under that section. Accordingly, the Board (or its delegates exercising the functions of the Board) may not be in a position to make factual findings or express ultimate conclusions on matters concerning the competence or otherwise of a particular medical practitioner. In the statutory scheme, findings and conclusions of that kind fall within the province of the Medical Tribunal.

It is, accordingly, of note that the delegates in the present matter not infrequently expressed their views or opinions in terms of “issues of concern” . The context in which such expressions were employed suggest they were intended to convey the limited nature of their inquiry, being based on the material (written and oral) available for the purposes of stating a conclusion required of them by the terms of s.66(1). In expressing their “concerns” or “issues of concern” (the word “concern” conveying the notion of “to cause anxiety” : Shorter Oxford English Dictionary), was, in my opinion, an appropriate and sufficient formulation for the purposes of expressing the conclusions required under s.66(1), the delegates themselves being specialist medical practitioners. The delegates’ analysis

In general terms, the structure of the delegates’ reasons may be discerned as involving the following:- The history of complaints, frequency and ‘escalation’ (a) The history of complaints, their frequency and ‘escalation’ , their pattern and the “themes” indicated by their terms together with a claimed absence in the plaintiff of a capacity for self-questioning or insight in light of complaints made and a modification or adjustment to his practice of medicine. (b) The plaintiff’s behaviour and communications during the ‘hearing’ as evidencing a personality that allegedly exhibited a sense of persecution or victimisation as well as a ‘grandiosity’ . Certain of his answers to questions raised in the ‘hearing’ were described in the report as ‘bizarre and convoluted’ . (c) The nature and conduct of the plaintiff’s medical practice in terms of his competence. In that respect:- (i) The conduct of the plaintiff’s practice according to what was asserted to be an inflexible routine pattern lacking flexibility in dealing with particular cases outside the routine. Such rigidity in approach was further claimed to be associated with a risk to a patient’s physical and mental well-being. (ii) Claimed deficiencies in the taking of patient medical histories. (1) The number of complaints

In relation to the multiplicity of complaints, the delegates considered them “to be an unusually high number of complaints about a practitioner” .

In seeking an explanation from the plaintiff about them, the delegates recorded that the only he explanation proffered to explain the number of complaints was either that he was, in his own words, a ‘psychopath’ (which he denied) or “that all the complainants were ‘psychopaths or sociopaths’ and that there was an orchestrated campaign to have him deregistered” .

The delegates recorded their opinion that that the type of collusion suggested by the plaintiff among so many patients was “implausible” . They stated in their reasons (at p.10):- “The delegates consider it significant that the HCCC has seen fit to prosecute in the Medical Tribunal so many complaints once they have completed their investigations and also see as significant that this volume of complaints will be heard altogether in the one Tribunal hearing. The complaint before the Tribunal is relevant in considering whether the circumstances (at the time of this Inquiry) warrant the Board taking action under s.66 of the Act. The delegates also note that prior to a complaint being referred to the Medical Tribunal, it is investigated by the HCCC and then referred to the Director of Proceedings, who independently determines whether such a complaint should be prosecuted before a disciplinary body.”

This observation may be taken as conveying the point that complaints have been the subject of some scrutiny and that there are checks made to guard against vexatious complaints. (2) Similarities between complaints

The delegates considered that there were “patterns or themes” in the complaints being matters of concern. These included “… his communication and behaviour during and after his interaction with his patients” . The delegates referred to “the nature, ambit and similarities across the complaints …” (p.11) as relevant to whether action was required under s.66. Two matters of note on the question as to the safety of members of the public were complaints alleging lack of information about procedures and an alleged lack of informed consent to carry out procedures.

The delegates expressed the view that effective communication with patients and their families was a matter that was related to safe and adequate medical practice. This included the question of informed consent and a concern for a patient’s overall well-being together with an evaluation of a patient’s subjective experience of the consultation and/or treatment. The fact that a number of patients made similar complaints about such matters was seen by the delegates as significant. (3) Failure to assess in light of complaints

The delegates expressed the view that a medical practitioner about whom complaints were made would be expected to assess and modify his or her practice in seeking to reduce the likelihood of further complaints. They expressed their concern that it appeared that the plaintiff had not made adjustments to minimise the risk of complaints nor had the complaints led him to question whether his actions had played a part in the generation of the complaints.

The opinion of the delegates was that without an ability to assess his/her practice in light of complaints and without insight into his/her interpersonal skills, there was a high likelihood of ongoing complaints, and the possibility of harm or distress being occasioned to patients. (4) Delegates’ observations made of the plaintiff during the ‘hearing’

The delegates recorded their “observations of Dr Lindsay during the Inquiry” . In an exchange with Mr Bruckner of counsel, Dr Mares is recorded in the transcript (p.51) as stating:- “I would see that we’re here to consider the question of whether Dr Lindsay poses a physical or mental health risk to the public. And in doing that, I need to listen to the way in which Dr Lindsay is giving his answers, the way in which he understands how he comes to be before the Board with all of these complaints to be heard by a Tribunal.”

It is sufficient to state, by way of summary, that several observations were made and recorded by the delegates in relation to two matters. The first related to the complex and convoluted and, at times, “inappropriate or unresponsive” answers given by Dr Lindsay to questions put to him during the hearing and an apparent inability at times to focus upon and deal with the point of questions. These “observations” by the delegates as related to patterns of speech observed were discussed in relation to what are referred to as “obsessional and paranoid personality traits” .

The second related to observations concerning what is characterised as the plaintiff’s sense of victimisation and his belief of the existence of an orchestrated campaign by various people and organisations, including the Health Care Complaints Commission, the Medical Board, the Royal College of General Practitioners, medical practitioners and former patients.

The delegates also described the plaintiff’s conduct as exhibiting a “grandiosity” which is said to be based upon statements made by the plaintiff (some of which are extracted in the reasons for decision) suggestive of an inflated sense of self-worth. Whilst the delegates did not consider such matters in themselves posed a risk necessitating action under s.66, it was considered they were “inappropriate” and “worrying” when viewed in conjunction with other concerns expressed by delegates in their decision. (5) Attitude to complaints and the complaint process

The delegates refer to a matter related to (4) above in their reasons concerning the plaintiff’s attitude as being related to what was claimed to be his inability to fully appreciate and possess proper insight into previous disciplinary proceedings taken against him and to issues related to matters of judgment or insight. (6) The plaintiff’s practice of medicine: patient history taking and record keeping

The delegates characterised the plaintiff’s approach to dealing with a high throughput of patients as having led to something of what they described as a rigid or automated method of practising. This approach did not, according to the delegates, admit of sufficient flexibility in dealing with patients leading to the creation of a risk to physical and mental health of persons attending the practice.

The issue of “practice” was specifically examined in terms of patient history taking and medical record keeping. The method of obtaining patient information or a patient’s history was largely based, the delegates observed, on the patient being requested to complete a ‘registration’ form. That form (a copy of which was annexed to Mr Solari’s last-mentioned affidavit, “KS4”, p.179) required, inter alia, patients to tick boxes in response to specific matters. Concerns were expressed by the delegates as to the ability of the plaintiff to identify the potential significance to treatment of pre-existing conditions in patients or medications prescribed for medical conditions. They, in particular, expressed concern as to the plaintiff’s ability to ascertain relevant details in respect of medications that could impact upon treatment given. This observation particularly concerned patients who had complicated medical histories.

The further observation made by the delegates related to what was asserted to be an inadequate emphasis by the plaintiff upon patient history-taking. This observation was made in the context of the plaintiff’s practice being one limited to treating skin cancer. Emphasis was placed upon the need for a practitioner to be alert to patients with complicated medical conditions (eg, heart valves or patients taking steroids) and their potential impact on treatment. A risk, it was noted, may arise by reason of inadequate history taking.

The plaintiff’s past disciplinary history, in particular it was noted, related to the issue of the adequacy or otherwise of his medical record keeping.

The concern expressed by the delegates related to the plaintiff’s ability to adequately address the risks arising from surgical procedures (eg, bleeding, the risk of infection, the experience of pain) prior to embarking upon the excision of lesions. (7) The issue of impairment

The delegates’ conclusions about this issue went beyond expressing ‘concern’ as to the plaintiff’s mental health, although stopping short of expressing a concluded view. The reasons recorded (p.25):- “The delegates believe there is enough evidence to suggest that Dr Lindsay suffers an impairment which detrimentally affects his capacity to practice medicine.”

The point made in written submissions of both parties was that this did not, however, amount to a concluded opinion that the plaintiff in fact suffered an actual impairment.

The ‘evidence’ to which reference is here made included the reports of Dr Allnutt. Those reports, in their terms, provided a foundation for the delegates in relation to questions put to the plaintiff during the ‘hearing’ in relation to issues concerning his mental health and the question of his need or otherwise for any psychiatric treatment. It also included the direct observation of the plaintiff during the course of the hearing. Those reports and the delegates’ own observations would, in my opinion, constitute some material upon which the delegates could make the above observation in paragraph [71].

The delegates noted that any actual impairment in a registered medical practitioner could give rise to a risk in two ways. The first was the risk of the impairment impacting on a practitioner’s perception, insight, thought processes and judgment. The second was due to any failure by such a person to seek medical treatment for a disorder can jeopardise the health and safety of patients. The decisions under s.66(1) of the Act

The Board (or its delegates) acting under s.66(1) of the Act is required to determine two matters. The first involves a determination whereby it is “satisfied” that action under s.66(1) of the Act “is necessary for the purpose of protecting the life or physical or mental health of any person” . The second, in the event that the Board or its delegates reach such satisfaction, is to determine whether necessary protection of the life or physical or mental health of a person requires an order suspending a registered medical practitioner from practising medicine for a period or the less severe action, namely, the imposition of conditions on a registered medical practitioner’s registration.

In relation to both matters, the Board (or its delegates) is required to assess matters of risk, including the nature and extent of risk, arising from facts or matters (in particular, conduct) concerning a registered medical practitioner.

In the exercise of the powers of the Board for the protection of the public under s.66(1), a number of general propositions may be noted:- (a) The decision process under s.66 may necessarily not involve the Board or its delegates in a detailed examination of factual matters subjacent to a complaint or complaints. (b) An examination of that kind may appropriately be undertaken in proceedings before the Medical Tribunal. A Tribunal may exercise any power or combination of powers conferred on it by Part 4 Division 4 of the Act if it finds “the subject-matter” of a complaint against a person “… to have been proved” or the registered medical practitioner who is the subject of the complaint admits to it in writing to the Tribunal (or the Professional Standards Committee). As noted earlier, in accordance with s.161(4) and Schedule 2,Clause 1 to the Act, a Tribunal in proceedings before it is not bound to observe the rules of law governing the admission of evidence, but may inform itself of any matter in such manner as it thinks fit. (c) The material relied upon the purpose of determining whether action should be taken under s.66 may include material that would not conventionally be considered as strictly evidentiary in nature, eg, complaints and allegations. A similar aspect was considered in relation to comparable legislation in General Medical Council v Sheill [2006] EWHC 3025 (Admin) (Crane J). In that case, an order had been made under s.41A(1) of the Medical Act 1983 (UK) . Section 41A(1) was (in part) in the following terms: “Where an Interim Orders Panel … are satisfied that it is necessary for the protection of members of the public or is otherwise in the public interest, or is in the interests of a fully registered person, for the registration of that person to be suspended or to be made subject to conditions, the Panel may make an order:- (a) that his resignation shall be suspended (that is to say, shall not have effect) during such period not exceeding 18 months as may be specified in the order (an ‘interim suspension order’); or (b) that his registration shall be conditional on his compliance, during such period not exceeding eighteen months as may be specified in the order, with such requirements so specified as the Panel think fit to impose (‘an order for interim conditional registration’) .”

In his judgment, Crane J referred to the basis upon which an interim order could be made. In that respect, he observed that attention is to be given to the nature of the proceedings for such an order stating:- “35. In my judgment, his submissions overlook the nature of these proceedings. They relate to an interim order. Neither the IOP nor the Court is embarking on a fact-finding exercise. In my judgment, the strict rules of evidence do not apply in the Court hearing. Both IOP and, in turn, the Court must look at the allegations made against the doctor. The Panel and the Court will expect the allegation to have been made or confirmed in writing, whether or not it has yet between reduced to a formal witness statement. The Panel and the Court will need to consider the source and the potential seriousness of the complaint. A complaint that is trivial or clearly misconceived on its face will clearly not be given weight. The nature of the allegations will be highly relevant to the issue whether conditions are sufficient.”

An inquiry, hearing or interview process conducted for the purposes of the Board or its delegates determining matters under s.66(1) could be considered to be preliminary or interim in nature or, as it was termed in the present proceedings, “interlocutory” . Such a process, in the present case, as earlier observed, did not involve the making of findings of fact or the determination of the merits of any complaint. Any observations or conclusions expressed by the Board or its delegates under s.66 following an inquiry, hearing or interview, are, and can only be, strictly for the limited purposes of s.66(1). Such observations or conclusions are not to be equated to findings on material questions of fact as may be made by the Medical Tribunal in proceedings conducted by the Tribunal under Part 11 of the Act.

The last-mentioned observation, of course, does not detract from the significance of an order suspending a registered medical practitioner from practising medicine for a specified period. Although the process of the Board or its delegates in performing its/their functions under s.66(1) differs in nature from proceedings conducted by the Medical Tribunal under the Act, the fact remains that an order under s.66(1) may severely affect a registered medical practitioner’s livelihood and career. Procedural fairness

In the plaintiff’s written submissions dated 30 January 2008, there were a number of grounds set out in support of the plaintiff’s challenge to the lawfulness of the action purportedly taken by the Board pursuant to s.66. These were supplemented during the course of the hearing with further written submissions entitled “Plaintiff’s Submissions in relation to the delegation 31 January 2008” and “Plaintiff’s note on not going into the specifics or details of complaints” dated 1 February 2008. The submissions were generally supplemented by oral submissions on behalf of both parties.

It was not contended by the Board that the rules of procedural fairness did not apply to the s.66 “Inquiry” held in the present case. In some circumstances (eg, cases involving extreme urgency) the power under s.66 may be properly exercised ex parte: X v New South Wales Medical Board (1993) 32 ALD 330 (Levine J). The focus of the parties’ submissions in the present proceedings was upon what the rules of procedural fairness or natural justice required in the circumstances of the present case.

I turn to each of the grounds referred to in the plaintiff’s primary written submissions. Ground 1: Denial of natural justice by refusal to specify which complaints and matters are to form the basis for the exercise of the s.66 power Ground 2: Denial of natural justice by refusal to provide an adequate opportunity to prepare and refusal to vacate the hearing date

I will deal with these two grounds together.

On 23 November 2007, the Legal Officer for the Board wrote to the plaintiff’s solicitor and also to the plaintiff directly (Annexure KS-1 to the affidavit of the plaintiff’s solicitor, Mr Kelvin Solari sworn 13 December 2007) advising that the New South Wales Medical Board’s Conduct Committee at its meeting held on 13 November 2007 determined “to hold an inquiry pursuant to s.66 of the Medical Practice Act 1992 in relation to your client, Dr David Charles Lindsay” .

The letter of 23 November 2007 specifically referred to a complaint made by a patient, known in these proceedings as Mrs F, and that the inquiry would determine whether any action should be taken in terms of the section. The letter further advised that “copies of relevant documents would be shortly forwarded to Dr Lindsay and to the delegates and to any adviser Dr Lindsay nominated as assisting him in the matter” .

The letter also advised that any additional material that the plaintiff wished to have before the delegates should be lodged by 11 December 2007.

On 28 November 2007, Ms St Hill, the legal officer for the Board, telephoned and advised Mr Solari that documents would be forwarded in the next day or so.

On 28 November 2007, two folders of documents, numbered 1-13, were sent to the plaintiff.

On 7 December 2007, Mr Solari wrote seeking information detailed in his letter and “full particulars of the allegation” that action was necessary in terms of s.66(1). Mr Solari noted that the folders of documents received on 3 December 2007 “selectively touches on a broad range of issues” . Mr Solari stated that in order for him to be able to respond he would need full particulars of the allegation referred to above, in particular:- (a) The identity of the “person” imperilled. (b) Is it alleged that his or her life, physical health or mental health is in peril? (c) How is it alleged to be so imperilled and in need of protection?

The remaining points ((2) to (5)) in the letter related to other matters, in particular:- “(2) May Dr Lindsay be represented at the Inquiry and appear by a solicitor and counsel? (3) Will the persons who have provided statements or other material be available for cross-examination? (4) What procedures are proposed to be followed at the Inquiry? (5) Your letter dated 23 November 2007 states that the complaint is considered ‘in the light of matters raised in the substantial complaints in relation to Dr Lindsay’s practice of medicine and his health, which have already been referred to the Medical Tribunal’. What material in relation to the principal proceedings has been made available to the delegates for the Inquiry?”

On 7 December 2007, Ms St Hill, on behalf of the Board, responded to Mr Solari’s faxed letter of 7 December 2007 in the following terms:- “… I refer to your faxed letter dated 7 December 2007. Responses to the numbered queries in your letter are as follows: 1. The material that has been provided to Dr Lindsay with my letter dated 28 November 2007 is the material which the delegates of the Board will consider during the Inquiry to determine whether any action is necessary under s.66. The issues listed a) to c) in your letter are matters for the Inquiry to consider. The extracts of the Minutes of the Conduct Committee held on 13 November 2007 (behind tab 9 in the folder of documents) provides reasons why the Board has determined to inquire into whether action is necessary under s.66 2. Dr Lindsay may be assisted (by a legal representative/s or any one else he chooses to support him) at the Inquiry, but may not be legally represented. 3. The Board is not conducting an Inquiry into whether Dr Lindsay is guilty of unsatisfactory professional conduct or professional misconduct in respect of any complaint and does not propose to call witnesses. 4. The Inquiry will explore whether it is necessary under s.66 to take action to protect the public. The delegates will expect to communicate directly with Dr Lindsay and he will be given the opportunity to be heard in relation to any of the material that is before the delegates. The Inquiry will be recorded. 5. The delegates that are conducting the s.66 Inquiry have been provided with the same folder of documents that has been provided to Lindsay. …”

On 10 December 2007, Mr Solari again wrote to Ms St Hill. A number of matters were addressed including “refusal to provide particulars as to the referred matter” , “inadequate opportunity to defend matters arising in principal proceedings” , “inquiry in relation to further matters” , “failure to permit cross-examination” , “legal representation” and “conflicts” .

In the third last paragraph of the letter, Mr Solari wrote:- “If the s.66 Inquiry is to proceed, then the scheduled hearing date of 14 December 2007 should be vacated, to permit a reasonable period for Dr Lindsay to prepare the matter. Without admission as to the validity of the decision to hold the Inquiry, I hereby request that the scheduled hearing date be vacated. I request your response by 5.00 pm on Tuesday, 11 December 2007.”

On 11 December 2007, St Hill responded in the following terms:- “… I refer to your faxed letter dated 10 December 2007, received by the Board on 11 December 2007. I use the same number as you have used in your faxed letter to respond as follows: 1. The matter that has been referred to the Section 66 Inquiry is whether it is necessary for the Board to take any action for the purpose of protecting the life or physical health or mental health of any person. Particulars are not relevant to the scope of this inquiry. The scope of the Inquiry and the reasons of the Conduct Committee for convening the Inquiry have been communicated by Dr Lindsay. The Conduct Committee in deciding to refer Dr Lindsay to a Section 66 Inquiry is permitted to consider previous matters concerning Dr Lindsay that have been before the Committee. However the delegates that will conduct the Section 66 Inquiry have so far only been provided with the folder of documents that has also been provided to you and Dr Lindsay in preparation for this Inquiry. Please note that in the event that they request further information or documents (which they are entitled to do), the same information or documents that may inform their decision will be provided to you and Dr Lindsay. 2. The extract of the Minutes of the Conduct Committee held on 13 November 2007 outlines the scope of the issues that led the Board to convene in Inquiry pursuant to section 66. 3. No response required. 4. The Board is not conducting an Inquiry into whether the facts of [Mrs F’s] complaint or the complaints that have already been referred to the Medical Tribunal are made out, nor whether Dr Lindsay is guilty of unsatisfactory professional conduct or professional misconduct in respect of any complaint. The issue before the Section Inquiry is as set out in point No 1. 5. Same response as point 4. 6. Same as points 1 and 4. With respect to the allegation concerning any denial of procedural fairness, your client will be given the opportunity to be heard at the inquiry and the delegates will carefully consider any relevant information that is provided by him. 7. No response required. 8. Any suspension, if considered necessary under Section 66 is not a ‘bringing forward’ of a final determination of matters which have been referred to the Medical Tribunal. If the Board forms the opinion that it is necessary to protect the life, physical health or mental health of any person it may exercise its powers under section 66 at any time. 9. Same as second paragraph of point 8. 10. Whilst the Board could have advised Dr Lindsay of the decision to convene a Section 66 Inquiry sooner, such advice is meaningless in terms of notice if the date of the Inquiry is not also able to be advised. As soon as the Board was in a position to provide full details of the Inquiry it did so. 11. The Board relies on its public protective functions as conferred/imposed by the Medical Practice Act in determining to convene a Section 66 Inquiry in light of the matters set out in the Minutes of Conduct Committee held on 13 November 2007. 12. The Board does not agree with your assertion. 13. Same as point 4. The Section 66 Inquiry is separate to any preparation required by Dr Lindsay for the Medical Tribunal hearing. 14. No response required. 15. The Court of Appeal decision (tab 2 in the folder of documents) does make clear which particulars in the Spathis and Minogue proceedings were not proven, and specifies the costs orders made. The 2002 proceedings you refer to do not appear to be relevant to the question of whether it is necessary for the Board to take any action in relation to Dr Lindsay for the purpose of protecting the life or physical health or mental health of any person. 16. Dr Lindsay will have the opportunity to be heard in relation to the material that is before the Section 66 Inquiry. Should further material need to be considered the delegates may, in their discretion, consider an adjournment. 17. Same as point 4. 18. Same as point 4. 19. See point 2 in my letter of 7 December 2007. All practitioners who are the subject of a Section 66 Inquiry face the same possible outcomes. 20. Dr Reid and Mr Dix are not decision makers in this forum as they are not members of the Conduct Committee. 21. The blacked out information does not relate to Dr Lindsay. Having considered the points raised in your faxed letter of 10 December 2007 the Section 66 Inquiry will not be vacated as you have requested. …”

In relation to the request for particulars, there was, of course, no “charge” or accusation and no form of pleading outlining issues for determination. The non-statutory inquiry conducted by the delegates, accordingly, was not a process in the nature of structured litigation. That, of course, does not mean that a medical practitioner is to be left in the dark as to the matters to be inquired into in circumstances where the rules of procedural fairness have application. In such a case, however, he or she must be afforded sufficient information to participate in the inquiry: see Ross v Brown [1979] 1 NSWLR 114, 129 to 130 cited and applied by Wilcox J in Bond v Australian Broadcasting Tribunal (No 2) (1988) 19 FCR 494. See also Dainford v Independent Commission Against Corruption (1990) 19 ALD 207 (Young J).

It is, accordingly, necessary to assess the information and materials that were made available to the plaintiff in the present proceedings prior to the hearing taking place on 14 December 2007 and during the course of the conduct of the hearing. The information in that respect may be summarised as follows:- (a) The letter from the Board’s legal officer dated 23 November 2007 advising that the Medical Board’s Conduct Committee had determined to hold an inquiry into the matters, the subject of the complaint by Mrs F and other complaints that had already been referred to the Medical Tribunal. The letter advised that the matters noted by the Board set out in its letter “all raise significant questions concerning whether the immediate action by the Board is necessary for the purpose of protecting the life or physical or mental health of any person” . The letter also advised that the Inquiry would determine whether any action should be taken in terms of s.66(2)(a) or (b). (b) The plaintiff had previously been earlier advised of Mrs F’s complaint by letter from the Board dated 9 May 2007 which enclosed a copy of her letter of complaint dated 24 April 2007 and called for a response from the plaintiff within 28 days. Mr Solari replied to the Health Care Complaints Commission (HCCC) by letter dated 12 July 2007 in which he set out “the facts of the matter …” . On 9 October 2007, the HCCC sent copies of all documents that had been sent to the “expert reviewer” . (c) The material constituting the two folders of documents received by the plaintiff and his solicitor on 3 December 2007 and advice that such material would be relied upon by the delegates during the Inquiry. (d) On 11 December 2007, an extract of the minutes of the Conduct Committee held on 13 November 2007 outlining the scope of the issues that led to the Board convening the Inquiry pursuant to s.66 were forwarded to the plaintiff. The Board, in that letter, confirmed that the Board would not be conducting an inquiry into the facts related to Mrs F’s complaint or the other complaints. (e) The transcript of the hearing of 14 December 2007 records questions and answers in relation to specific issues raised with the plaintiff including, in particular, the matters related to the “issues of concern” referred to in the reasons for decision given by delegates. These are considered in detail below.

The nature of the proceedings under s.66 do not, in my opinion, require the provision of particulars where, as in the present case, the material to be relied upon by the delegates set out the complaints, the particulars of complaints as set out in the Further Amended Notice of Complaint and the other relevant documents contained in the folder supplied to the delegates and to the plaintiff and his solicitor. The position in that respect is, of course, to be distinguished from proceedings in which a charge is made in criminal or disciplinary proceedings. In a case of the latter kind, it will be necessary for a person or body bringing a charge to identify in clear terms all charges to be relied upon, the relevant legislative provisions and rules governing jurisdiction, the particular grounds relied on and particular of the act(s), matters or allegations forming the basis of the charge and perhaps potential penalties involved: Judicial Review of Administrative Action , Aronson Dyer & Groves, 3 ed at pp.500 to 501. As the learned authors there observed, far less can be sufficient in cases at the other extreme, such as application cases, investigations and general inquiries into broad issues.

I have referred earlier to the significant adverse impact that can result from action being taken under s.66. That is a matter that must be taken into account. However, on the evidence, I have concluded that the Board did not proceed in breach of procedural fairness requirements by refusing to state or supply “particulars” as requested by Mr Solari in his letter of 7 December 2007. The subject matter of the Board’s Conduct Committee determination which led to the decision to hold an Inquiry had been identified, the particular complaint of Mrs F was well-known to the plaintiff. It had been the subject of detailed information furnished to the plaintiff earlier in the year through Mr Solari. The specific complaint material relating both to Mrs F’s complaint and the other complaints that had been referred to the Tribunal together with related documents were copied and supplied to the plaintiff and to Mr Solari and to the delegates and were later utilised during the course of the hearing.

During the hearing on 14 December 2007, the transcript reveals that specific areas of questioning were directed to the plaintiff for his attention and response. Details are referred to later in this judgment. In this way, he was given the opportunity of addressing issues related to his methodology, his clinical practice, particular issues associated with patient history-taking, his apparent ability or otherwise to make relevant self-assessments in light of complaints made, the nature and pattern and number of complaints, his responses to the complaints, including, in particular, his statements concerning alleged collusion between patients, statements conveying his sense of victimisation and his interpersonal communications with patients.

In the plaintiff’s submissions (in particular, from paragraphs 40 to 49), subject to a matter concerning steroids, there is no claim made that the plaintiff was taken by surprise on any particular or specific issue raised either in the documentary material or at the hearing or of any inability in the plaintiff to deal with issues raised with him. In paragraph 48 of the plaintiff’s written submissions, the following statement appears:- “As a result of lack of notice, Dr Lindsay was unable to adduce material or make submissions on a number of issues which ultimately made their way into the reasons for decision, eg, to contest the delegates’ view on steroids which was revealed for the first time in their reasons for decision. The matters which would have been the subject of evidence and submissions are dealt with in the affidavit evidence of Mr Solari sworn on 23 January 2008.”

The general contention here made concerning lack of notice was supported by reference to the matter concerning steroids. The subject of steroids occurred in the context of the plaintiff’s approach in obtaining relevant medical history from patients. It was referred to in the delegates’ reasons for decision at p.21. It was directed to the issue as to whether medications previously prescribed and taken by patients could impact or be relevant to the plaintiff’s treatment of them.

In the discussion on these matters, the medication, Warfarin, was specifically raised by the plaintiff. The question of steroids (as in the case of Warfarin) appears as an illustration of the general subject matter referred to in [102] above which was raised and discussed with the plaintiff on the patient history-taking issue.

There is no evidence from the plaintiff to any other matter raised during the course of the hearing or in the report that was said to have taken him by surprise or placed him in a position of disadvantage. Mr Solari’s affidavit sworn on 23 January 2008, paragraph 4, refers to matters about which he says he would have presented information if given the opportunity. On the finding I have made on the issue of particulars, namely, that the issues relevant to the Inquiry were apparent from the information supplied, as it was made known to the plaintiff’s solicitor that if he wished any material to be placed before the Inquiry he should do so before it commenced, he had the opportunity to do so. Some of the matters referred to by Mr Solari in paragraph 4 of his affidavit (eg, expert evidence, factual matters in relation to complaints) may have been relevant to a hearing directed to the determination of facts or merits of the complaints. However, as had been clear, the Inquiry in question was not embarking upon a fact-finding hearing.

The plaintiff’s written submissions (paragraph 49) contend that:- “The issues of concern apparently harboured on the part of the delegates were suppressed up until the conclusion of the Inquiry … and were only revealed in the reasons for decision dated 4 January 2008, p.8 …”

This contention comes close to a claim that the decision of the delegates was made and based upon matters that were not made known to the plaintiff and that he was thereby deprived of an opportunity to be heard. However, as an examination of the transcript of 14 December 2007 reveals, that was not in fact the case. The transcript (171 pages) records the specific matters that were raised and discussed with the plaintiff. Whether the exchange between the plaintiff and the delegates be properly described as a question and answer format or as a “dialogue” , the issues dealt with in the delegates’ reasons for decision and which are discussed later, were the subject of particular attention in the hearing. The issue of steroids, which has been separately referred to above, is an exception to that general position.

I, for reasons set out above, accordingly, do not consider that Ground 1 or Ground 2 have been made out.

In relation to the specific question of the refusal to vacate the hearing date, the plaintiff relies upon the letter from Mr Solari dated 10 December 2007, paragraphs 1 to 6 and 12 to 13.

However, paragraphs 1 to 6 do not refer to the question of vacating the hearing date nor is that matter raised in paragraphs 12 or 13. Such a request to vacate was made in the third last paragraph of the letter. The legal officer for the Board stated that, having considered the matters raised, the s.66 Inquiry would not be vacated as requested.

The issue of an adjournment called for a consideration of the nature of the Inquiry, the plaintiff’s ability to participate in it, the basis upon which matters were to be examined as well as the public interest in acting with reasonable and appropriate expedition.

The request and refusal on 11 December 2007 to vacate the hearing date is, in particular to be evaluated by a consideration of any prejudice that would be engendered by a refusal to vacate the hearing on 14 December 2007.

The request for an adjournment by Mr Solari was not based upon any issue concerning the unavailability of evidence (whether documents or persons) on a particular matter or matters. There was no specific issue identified in the correspondence said to give rise to or that might possibly occasion disadvantage or prejudice should the hearing on 14 December 2007 not be vacated. The letter of 7 December 2007 (KS-1) from Mr Solari to the Board raised matters as to “inadequate opportunity to defend matters arising in principal proceedings” (pp. 2 to 3) but that this was not directed to the opportunity to address matters in the Inquiry itself.

In paragraph 16 reference was made (for unspecified reasons) to “significant time” being required to respond to materials provided on 3 December 2007 “which go beyond the complaints of Mrs F and the complaints in the principal proceedings” . The Inquiry, however, was essentially focused upon the matters associated with those complaints and those matters to which I have referred earlier.

There was no contention made in Mr Solari’s letter of 10 December 2007 that there were specific reasons or matters of prejudice in the event that the hearing date was not vacated: see Bhatia v New South Wales Medical Board [2007] NSWSC 1316. As the history recounted earlier records, the plaintiff sought and failed to obtain orders of this Court (James J) to prevent the hearing from proceeding on 14 December 2007.

The opportunity to place material before the delegates is raised in paragraph 53 of the plaintiff’s written submissions. Reference is made to statements made at the hearing recorded at transcript p.41.22-31 and p.55.3.

At transcript p.41.22-31, Mr Bruckner of counsel raised the question of letting the plaintiff know what matters and complaints in fact were the subject matters being inquired into and that “… we may indeed seek to put additional material before you after today once those matters are clarified …” .

At transcript p.55.3, Mr Bruckner indicated, after a break in proceedings, that the plaintiff would answer questions but said “if you do … investigate the first matter, then we’d seek some time to produce a selection of documents to at least give colour to the charge just to show that there are certainly two sides of the story, that would not warrant any action on this urgent basis with this extraordinary power” .

The contention then made in the plaintiff’s submissions (paragraph 54) was that the delegates then made their decision:- “Without first identifying the matters being inquired into. This had the effect of denying the opportunity of Dr Lindsay to put on relevant material or to make submissions in relation to those matters.”

The above matters should be considered by reference to the proposition that a registered medical practitioner, where circumstances are not so urgent as to exclude the right to be heard, should be afforded a “reasonable” or “fair” opportunity to respond: Re Minister for Immigration & Multicultural Affairs; ex parte A [2001] 185 ALR 489 per Kirby J at 498 on the application of the principle in another context. That ordinarily would require at least the disclosure of the matters to be considered and the materials that the decision-maker proposes to have regard to in coming to his, her or its decision. In the consideration as to whether there was any breach of the last-mentioned principle, it is relevant to have regard to the notice and disclosure given and made as follows:- (a) The period of notice (approximately three weeks) given by the Board on 23 November 2007, referred to above, and the provision of the two volumes of materials to be relied upon which was in the plaintiff’s possession for a period of approximately two weeks. (b) The “matters” for examination which included specific complaints by identified persons being former patients of the plaintiff. (c) The fact that the delegates indicated that the specific facts of individual complaints were in issue and were disputed by the plaintiff in the Tribunal’s proceedings and that the delegates, accordingly, would not embark upon a merits determination, accepting that the plaintiff had put those complaints in issue. (d) Advice to the plaintiff as to what the delegates would not be examining (the letter form the Board’s legal officer dated 7 December 2007, points 3 and 4) and the letter of 11 December 2007, point 4(v). (e) The fact that the plaintiff was informed by letter dated 23 November 2007 that he could place material before the delegates. In the Board’s letter of 11 December 2007, advice was given to the plaintiff that, should further material need to be considered, the delegates could, in their discretion, consider an adjournment. The opportunity to provide additional relevant material was also expressed at the hearing: see the reasons for decision, p.3.9. The plaintiff did produce at the hearing on 14 December 2007 and a copy of the 2003 report of Dr Westmore, psychiatrist.

The question of timing of the hearing was a matter which the delegates were required to determine, having regard to the appropriate balance between the plaintiff’s interest and the public interest in the conduct of an Inquiry. Similarly, the extent of material to be examined on such an Inquiry was necessarily confined or limited. It is clear that the Inquiry was not intended to be (as was made clear in correspondence to the plaintiff’s solicitor) a “full-blown” merits Inquiry or an adversarial hearing: Minister for Local Government v South Sydney City Council [2002] 55 NSWLR 381, 436. It was not, as earlier noted, a formal or statutory inquiry.

In the South Sydney City Council case, Mason P referred to two general propositions:- (a) The content of the obligation of procedural fairness depends on the circumstances of the case, the nature of the inquiry and the subject-matter being dealt with. (b) The focus on questions such as those presently under consideration is whether the plaintiff was given a reasonable opportunity to address issues relevant to his interests.

Whilst the process employed by the delegates may not have been the same as that of an “investigative tribunal” , it was in nature an inquiry process. Mason P in the South Sydney City Council (supra) observed (at 438):- “It may not be possible to describe or define with precision the type of conclusion about which a particularly affected party should not be ‘left in the dark’. Obviously much depends on the nature of the investigation, the specificity and importance of the ‘adverse’ recommendation, the nature of the interest affected and the likelihood of it being anticipated as a matter to be addressed.”

In the present case it is accepted, of course, that the plaintiff had a specific interest. The seriousness of the consequences of a decision taken in relation to the s.66(1) powers is a relevant matter in determining the content of the requirement for procedural fairness: Telstra Corporation Limited v Australian Competition and Consumer Commission (No 2) (2007) 240 ALR 135 at [241] per Bennett J. So also, the specific public interest, the subject of s.66, is a consideration to be considered and balanced in making a determination of that kind.

The complaint made by the plaintiff on the question of “particulars” and the “reasonable opportunity” point is an unspecific complaint. There is no particular matter (aside from the steroid point) which the plaintiff claims was raised in the Inquiry which fell beyond the scope of matters the subject of the documents in the folders of material provided.

I have concluded that the Board was not in breach of any obligation as claimed. In particular, the complaints and documentary materials were sufficient to inform the plaintiff of the issues that fell within the scope of the Inquiry and the nature of the inquiry to be conducted. The plaintiff has not established (apart from the reference to steroids) any issue on which he had been “in the dark” or particular disadvantage in the course of discussing the matters raised and discussed. The issue of steroids was an illustration of the general topic concerning patient medication.

Ground 2 raises matters related to the next ground, Ground 3. Accordingly, I consider that the issues discussed in relation thereto, for reasons to be stated, reinforce the conclusion which I have expressed. Ground 3: Misrepresentation by delegates

The submissions for the plaintiff contended that the delegates misrepresented or misled the plaintiff in two respects:- (a) Having informed him that they were not going to concern themselves with “the details” of the complaints which were before the Tribunal and those which were not, the delegates then proceeded to do so. (b) That at the conclusion of the proceedings on 14 December 2007, the delegates were said to have misrepresented the position as to the future course of the Inquiry. The submission was in the following terms:- “59. There was a far more serious matter in which the plaintiff and his legal advisers were misled. At the conclusion of proceedings on 14 December 2007, the plaintiff and his counsel had made it abundantly clear that they were in a state of uncertainty as to the issues of concern which should be addressed, because of the delegates’ refusal to identify those issues. Nevertheless, the delegates accepted that they would communicate with the plaintiff on the following Monday, 17 December 2007, if they wished to hear further from the plaintiff on any particular matter. That statement clearly conveyed the usual implication that no finding would be made or decision reached adverse to the plaintiff without a further opportunity to address the delegate. However, the delegates proceeded on 18 December 2007 to their conclusions and decision to suspend without affording the opportunity which they implied on 14 December 2007 would be given to the plaintiff.”

I will deal with the second of these two points first, being the order in which Mr Ireland addressed them. Mr Ireland cited, in support of the submission on this aspect, the decision of the High Court in Applicant Naff of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1. He contended that in the light of the statement made by the delegates at the conclusion of the hearing, there was an “expectation” that there would be a reconvening of the Inquiry if more was needed to be heard. He submitted that that carried with it an implication that if there was a matter that needed to be answered, then the mechanism which the delegates had identified would be invoked and thereby an invitation would be extended and an opportunity afforded to meet those matters which endured as a matter of concern and a matter needing contradiction or comment (transcript, 31 January 2008 at pp.30 to 31).

Mr Ireland relied upon Applicant Naff of 2002 (supra) as involving an analogous situation. In evaluating that submission, it is necessary to have regard to what was said and done by the delegates on 14 December 2007. It will be then necessary to examine the factual context and matters considered by the High Court in the last-mentioned case.

The recording of the proceedings concluded at 5.52 pm on the last-mentioned date. Page 171 of the transcript is the last page of the taped recording. The parties, for the purposes of the present proceedings, agreed upon the matters discussed by the delegates following 5.52 pm and reduced their agreement to what was said to writing: see Agreed Facts, Exhibit C. Exhibit C covered the exchange in the period from 5.52 pm to 6.30 pm. The following points are extracted from it:- Session from 5.52 pm to 6.30 pm “3. Towards the end of this session Dr Mares invited anything further. 4. Immediately prior to Mr Bruckner’s submissions, Dr Lindsay stated that they had still not been told what was being inquired into. 5. Mr Bruckner then submitted:- (a) they had still not been told what is being inquired into (b) one matter may be Dr Lindsay’s communication skills and if there is a communication issue on its fact it should be considered that it wasn’t necessarily an impairment issue. 6. Mr Bruckner submitted that, whatever the delegates had in mind, Dr Lindsay had said that if the delegates think he can do something to improve his communication skills then he would be prepared to consider it. 7. Mr Bruckner submitted that Dr Lindsay had said that, if conditions are imposed, he would comply with them. He stated there was a lot more correspondence than had been provided to the delegates in relation to Dr Lindsay’s compliance with previous conditions. 8. Mr Bruckner submitted, if the delegates were to take the view that Dr Lindsay may not comply with conditions, he would want to put on further material in relation to that. If they took the view this needed to be done urgently, then it could be provided by way of a selection, by way of illustration. 9. Mr Bruckner stated that Dr Lindsay still did not know the subject matter of the inquiry or the concerns the delegates had, and he was unable to know what documents or material may be able to assist until that is done. 10. Mr Bruckner said that, if indeed the delegates intended to rely on Dr Lindsay’s psychiatric state and Dr Allnutt’s report as a basis for suspending him or imposing conditions, then he would want to put on further material. Mr Bruckner said it may be that the delegates took the view that, even if there was a psychiatric condition, then there was no link to Dr Lindsay’s practice of medicine, in which case he would not need to put on any documents in relation to that. 11. Dr Mares stated ‘there is a lot of material there and a lot to digest’. Dr Mares proposed to adjourn until Tuesday for further interview, if needed. Dr Mars said that the Board would get in touch with Mr Solari on Monday if the delegates wanted to hear more from Dr Lindsay orally or required further submission of material.”

The proposal of Dr Mares which is recorded in paragraph 11 of Exhibit C “to adjourn to the following Tuesday if needed” followed a statement by her that the Board would get in touch with Mr Solari on the Monday “if the delegates wanted to hear more from Dr Lindsay orally or required further submission of material” . This did not, separately or together, constitute a statement by her that the “interview” would be resumed. The possibility of that occurring was conditional upon the delegates forming a view that they required to hear further from the plaintiff and/or required further material.

There was not in the statements made by Dr Mares a representation that there would be a further “interview” or that the plaintiff was to have the opportunity of submitting more material. The facts in this matter contrast in that respect with those in Applicant Naff of 2002 (supra).

In that case, the applicant applied to the Refugee Review Tribunal for a review of the decision of the delegate of the Minister pursuant to s.412 of the Migration Act 1958 (Cth) .

At the conclusion of the proceedings, the Tribunal member indicated that she would have to write to the applicant about what were described as “some inconsistencies with regard to the dates of detentions and the number of detentions” . Contrary to the procedure indicated, the Tribunal did not write putting any questions to the appellant within a couple of days, or at all. It later sent a letter to him saying that she had considered all the material relating to the case and the Tribunal had made its decision.

As the High Court (McHugh, Gummow, Callinan and Heydon JJ) observed, the legislation provided for an inquisitorial, merits-based review by an independent Tribunal. In substance, what had happened was that an adjournment had been granted on condition that further material in writing was supplied on matters to be indicated by the Tribunal’s questions. One aspect of the overall duty of review included the duty to invite an appellant to give evidence and present arguments pursuant to s.425(1) of the Act.

The Court observed (at p.11) that the Tribunal member had indicated that a review should not be brought to a close and it was appropriate to hear more from the appellant about the detention, observing:- “The case, then, is an unusual one. In her closing remarks on 5 February 2002, the Tribunal members was herself acknowledging that the purposes of the review had not been completely fulfilled by the documents supplied before 5 February 2002 or by the events of 5 February 2002. She was indicating that she had not yet finished receiving the presentation of arguments by the appellant which she had been invited to make, pursuant to s.425(1) of the Act, by the letter of 13 December 2001. She was saying that procedural fairness required some further steps to be taken so that the matters indicated could be ironed out one way or the other. It is clear that the Tribunal member was in the best position to judge whether the review process was incomplete. Her conduct is only consistent with the formation of a firm impression that it was.”

In oral submissions, Mr Ireland stated that there was no “resumption of the Inquiry” and that instead “… on the scheduled day for the re-start, they announced their decision adversely to the doctor” (transcript, 31 January 2008, at p.23).

Having regard to the terms of the statements made by Dr Mares, it is clear that, in fact, there was no “scheduled day for the re-start” . Accordingly, I am unable to agree or accept the oral submissions that Applicant Naff of 2002 (supra) was “indistinguishable” from the present case.

In relation to the second point, the submissions made on behalf of the plaintiff developed three specific matters as follows:- (a) That the delegates had stated that they would not examine the specifics of the complaints and yet it was claimed that implicitly they proceeded upon the basis of what was described as an “evaluation of the merits of the complaints” (transcript, p.36) contrary to assurances given by them in the course of the Inquiry. (b) The delegates had not identified the “issues of concern” . (c) The “mechanism of reasoning” of the delegates which involved, in particular, matters such as the similarities and patterns of complaints, their number and apparent escalation.

It is noted that at the outset of the hearing on 14 December 2007, Dr Mares stated (transcript, p.44) that:- “We are not in any way able to address the specifics of any of the complaints or the matters that are individually before the Tribunal that’s scheduled for next year. So, I think, we don’t have the material available or the time. My understanding is the Tribunal set down for 12 weeks and that must be some indication of how much material there is to be considered. I am working from the assumption, which I should clarify with you, that you are contesting those complaints.”

The plaintiff then confirmed that he was disputing the complaints.

It is apparent from the statutory scheme that the Board (or its delegates) acting under s.66(1) may be required to act upon limited or incomplete information. This is reflected in the terms of s.66B(1) of the Act, in that the Board is required by that section, as soon as practicable after taking any action under s.66, and in any event within seven days after taking that action, to “refer the matter to the Commission for investigation” . This provision is consistent with the notion earlier discussed as to the nature of an Inquiry for the purposes of s.66(1). The matters of complaint will, after the making of an order under s.66, be the subject to investigation with a view to establishing matters and evidence establishing the merits of them or otherwise.

The question raised by the plaintiff’s submission is, firstly, whether in this case the delegates were able and entitled to draw preliminary or interim conclusions from the fact of the complaints themselves and the matters that they individually or together raised (in particular, the “themes” or “patterns” referred to by the delegates) without embarking on or undertaking a fact-finding hearing. Additionally and specifically whether, in doing so, the delegates acted contrary to the statements made by and on behalf of the Board as as to the basis upon which the Inquiry would proceed.

The following matters are noted in this respect. (a) The letter written on behalf of the Board on 23 November 2007 identified the fact that the complaints Mrs F and the other “substantial complaints raised significant questions” with reference to the possibility of action under s.66(1). (b) The material concerning the complaints had, as earlier discussed, been supplied to the plaintiff and his solicitor. (c) The Board, by its letter of 7 December 2007, confirmed that the material that had been provided to the plaintiff and the delegates was the material that would be used to determine any action under s.66.

An examination of the nature of the complaints from individual patients in a particular case made against a registered medical practitioner may be expected to reveal the occurrence and re-occurrence of matters of a similar nature. Such an examination of complaints may necessarily reflect any “themes” or “patterns” of conduct including any conduct that entails risk to the life or health of patients.

It is clear, as a matter of common sense, that a sufficient level of concern may arise from a multiplicity of complaints directed at a particular registered medical practitioner particularly if the do reflect a pattern on matters of concern. The complaints, as earlier discussed, cannot constitute evidence of the facts asserted in them or that are or subjacent to them.

The assessment of risk and precautions by way of risk prevention are, of course, matters of significance that arise in many fields of activity. Thus, in aviation, the fact of multiple complaints from pilots flying a particular aircraft suggesting a possible mechanical fault may, even in the absence of substantiation, require a regulator to form and act upon the basis that, in the interests of public safety, the aircraft should be suspended from operations pending a detailed and proper Inquiry. Ultimately, on full investigation, the apparent mechanical problem may indeed be found to be of a serious nature or it may be found to be benign or irrelevant to the matter of safety.

The delegates, in questioning the plaintiff over the number and nature of complaints and his approach to matters such as history-taking, self-assessment, practice methodology, informed consent issues, treatment in the face of alleged patient protests, are matters which, in my opinion, fell well within the ambit of the materials, in particular, the complaints as particularised and were relevant to the decision to be made under s.66. In assessing and identifying such matters as relevant in their assessment of risk, I do not consider that the delegates acted contrary to any “representation” or were conducting an evaluation of the merits of the complaints.

Mr Ireland contended that there was a “large measure of pre-emption of an assessment of these complaints and their significance, a matter singularly for the Tribunal …” (transcript, p.132). He also submitted that in looking at matters of “similarities” there was something of an “assumption” that the complaints were well-based (transcript p.31).

“Concern” was expressed by the delegates in their reasons for decision in relation to matters identified in the preceding paragraph, including the number of complaints, the inherent unlikelihood of collusion between such a large number of patients, the nature of the themes and patterns of complaints and their assessment of any potential significance of such matters in terms of the future treatment of patients by the plaintiff in his practice. However, these are not expressed as findings based upon an evaluation of evidence such as to pre-empt any proceedings currently before the Medical Tribunal.

As to the contention that the issues of concern reflect an assumption evaluation or assessment that the complaints were “well-based” , I consider that the Board or its delegates acting under s.66 in a matter such as the present can take the complaints at face value, appreciating, as they clearly did, that the plaintiff had plainly stated that he took issue with them and that they would be subject to investigation if action was taken under s.66. It is an everyday occurrence that in particular circumstances a court may be required to grant interim relief on the basis of evidence that establishes a matter or matters to a prima facie level only. In the community outside the courtroom, regulators will not infrequently be required to take matters at face value in deciding upon interim protective measures. I do not consider that the delegates accorded to the complaints a rating or assessment beyond that appearing on their face and as particularised. They, of course, were entitled to and did have regard to information obtained during the hearing on a range of matters.

The delegates, in my opinion, sufficiently drew the plaintiff’s attention to the matters they were inquiring into. They, in particular, drew attention to their concerns as to the number of themes and patterns during their interviews and discussions with the plaintiff on 14 December 2007. In that respect, I note from the transcript the following (at pp.121 to 122):- “Dr Mares: Part of the reason that we’ve been focusing on the notes and the issue of information and patient consent, is that you do have a large number of complaints made against you by patients over the last 10 years, let’s say. And that there are a number recurrent, I guess, themes or patterns, if you like, in the complaints, which the bulk of them seem to refer to your communication or your manner with patients, not all of them, would you agree?”

The plaintiff initially responded that he did not agree but did agree with the notion that there was a “pattern” (transcript, p.122.5).

I have, for reasons stated above, concluded that Ground 3 has not been made out. Ground 4: That the legal assistance of a barrister was not enough

This ground was addressed in the Plaintiff’s Outline of Submissions at paragraphs 60 to 64. It was contended that the delegates, in not allowing the plaintiff to be represented during the course of the hearing by a legal practitioner (although permitting his counsel to be present during the hearing to advise him), constituted error.

The written submissions referred to case law in which the issue of the right to legal representation before a Tribunal was discussed (in particular, paragraph 61) and to the discussion of the matter in Judicial Review of Administrative Action by Aronson Dyer & Groves (paragraph 62). The submissions did not elaborate upon specific matters said to have occasioned any actual or particular disadvantage or unfairness to the plaintiff arising from the procedure that was adopted.

It is common ground that there is no statutory right to legal representation in any inquiry conducted in relation to the exercise of the powers under s.66. This is in contrast with other provisions of the Act dealing with legal representation before the Tribunal: s.162(1).

Counsel briefed on behalf of the plaintiff to attend the hearing, Mr Bruckner, was present during the hearing and was permitted at an early stage to address the delegates on a number of matters and to be heard occasionally during the course of the hearing. He was also permitted to make submissions at the conclusion of the hearing. The opportunity was sought and granted for the plaintiff on occasions to communicate with Mr Bruckner.

Ms Richardson, in her written submissions, contended that the transcript of the hearing revealed that at the outset of the hearing the delegates made it clear that the plaintiff’s barrister could:- (a) Discuss or make notes or in any ways advise Dr Lindsay as the hearing progressed. (b) Make submissions to the delegates at the end of the hearing. (c) Advise Dr Lindsay that he should not answer a question because it was inappropriate. (d) Request that the delegates break in order to allow him (to) advise Dr Lindsay (paragraph 90).

The Board’s submissions (paragraph 92) contended that it was significant that the plaintiff did not identify any prejudice to him arising from the fact that he was only afforded the legal assistance of a barrister, as opposed to, representation.

In the Laws of Australia , Judicial Review of Administrative Action: Procedural Fairness at 2.5.60, the learned authors state:- “… there is no general rule that the capacity to be legally represented is an element of procedural fairness, but ‘the particular circumstances of a particular case may make clear that to be legally represented, as by counsel, would be an essential ingredient if the Tribunal was to discharge the duty to afford procedural fairness.” : Harper v Racing Penalties Appeal Tribunal (WA) [2001] WASCA 217, Murray J (with whom Wallwork and Miller JJ agreed) at [53]

In the discussion at the above reference in the Laws of Australia , it is observed:- “… considerations relevant to the question of whether a decision to disallow representation of an applicant before a Tribunal amounts to a denial of procedural fairness will include:- (1) The applicant’s capacity to understand the nature of the proceedings and the issues for determination. (2) The applicant’s ability to understand and communicate effectively in the language used by the Tribunal. (3) The legal and factual complexity of the case. (4) The importance of the decision to the applicant’s liberty or welfare.”

There was no issue taken in the present case as to the applicant’s capacity to understand and to participate in the hearing and to communicate with the delegates. There was no submission made that the legal and factual complexity of the case called for legal representation. Equally, however, there was no issue but that the decision of the delegates was an important one, so far as the plaintiff was concerned and, in particular, his livelihood.

The variable content of procedural fairness in this context was pointed out by Drummond J in Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 557 at 570 which was cited by the Full Court of the Federal Court in Appellate WADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA FC 30 at [59]. Drummond J, in the former case stated:- “The effect of the cases is that, in the absence of statutory indication to the contrary, administrative bodies and lay tribunals are in general free to exclude lawyers; but the circumstances of the particular case may be such that a refusal to allow legal representation may constitute a denial of natural justice. This is likely to be so where complex issues are involved or where the person affected by the decision is not capable of presenting his or her own case. In this sense, it may be said that in certain circumstances the ‘right to legal representation’ is an element of natural justice.”

It is clear, accordingly, that much depends upon the circumstances of the particular case. There has not been established, in my opinion, in the circumstances of the present case, that there were particular circumstances requiring full legal representation. The transcript reveals that the interview or dialogue between the plaintiff and the delegates did not evidence any incapacity in the plaintiff responding to the questions, although it is true, that the delegates noted, that many of his answers were discursive and unresponsive. It was not suggested, however, that that was due to any lack of capacity or understanding on the plaintiff’s party. The hearing followed the course of eliciting information from the plaintiff and seeking his responses on medical questions directed to an assessment of the plaintiff’s response to complaints and to several matters related to his clinical practice,

I have concluded that, in the circumstances in which the plaintiff was permitted to have Mr Bruckner present and available for advice, as required, that procedural fairness principles did not require that he be represented by a legal practitioner. Ground 5: Failure to take into account proportionality and the period of suspension

In the plaintiff’s written submissions (paragraph 65), the observation is made that in Bruce v Cole & Ors (1998) 45 NSWLR 163, 185, Spigelman CJ at 185 declined to acknowledge proportionality as a ground of review in its own right as indicative of Wednesbury reasonableness.

It was conceded that this Court must follow Bruce (supra). The formal submission made was that I ought not follow it.

On this basis, the Board did not make detailed submissions on the point. In those circumstances, it is sufficient to regard that I have, elsewhere, acknowledged the importance of action being taken under s.66(1)(a) or (b) that is appropriate or proportionate to a particular case. Matters involving expert evaluation and judgment will, of course, often be important in this respect.

The Medical Tribunal has, as discussed elsewhere, had conferred upon it ample jurisdiction and power with respect to matters of that kind. The Tribunal is, of course, specifically constituted under the Act thereby equipping it to deal with matters within its specialist jurisdiction. Ground 6: Insufficient regard to the facts

The plaintiff’s written submissions raise matters concerning issues of “sufficiency of evidence” , “bare allegations” and that a failure to address the “specifics” of any of the complaints involves a failure to take into account relevant considerations and a breach of the duty to inquiry (paragraphs 75 to 96 of the plaintiff’s written submissions, 22 January 2008). A number of references are included in the submissions to authorities including English authorities (paragraphs 76 to 81) on comparable legislation.

In paragraph 80, reference is made to those English authorities that are said to “support the view that bare allegations may be sufficient in the first instance” , citing, as an example, General Medical Council v Sheill [2006] EWHC 3025 (Admin), 30 November 2006 at [35].

The issues raised in relation to the ground have largely been discussed above in relation to earlier grounds. The question of the basis for the exercise of the power under s.66 in the context of the statutory scheme established by the Act (not requiring a fact-finding exercise in relation to specific complaints) and the jurisdiction and role of the Medical Tribunal have been referred to elsewhere in this judgment and need not be repeated but such matters respond to the matters arising under Ground 6. Ground 7: Irrationality, illogicality, unreasonableness and failure to apply the “necessary” test

The plaintiff’s written submissions (paragraphs 101 to 106) refer to what is termed the High Court’s decision in In re Minister for Immigration and Multicultural Affairs; ex parte applicant S20/2002 (2003) 198 ALR 59. The plaintiff’s contention was that the decision of the delegates contained many “illogical irregularities” and is based upon material that is “irrelevant or not logically probative” (paragraph 103).

It was further submitted that the delegates’ observation that the plaintiff had not made adjustments in order to prevent complaints “effectively using against him the fact that he maintains his innocence” .

The delegates are said to have reasoned from a likelihood of ongoing complaints to the possibility and thereafter to the likelihood of “similar stresses” caused to patients.

The submissions also contended that the delegates improperly elevated “disparate nominal concerns to the appearance of a single concern sufficient to exercise the serious power” (paragraph 111).

In order to exercise the power under s.66(1), the Board (or its delegates) as decision maker(s) plainly must have available material capable of satisfying the Board (or its delegates) that action under either s.66(1)(a) or (b) “is necessary” for the purpose of meeting a risk or danger associated with the practice of medicine by a medical practitioner to the life or physical or mental health of any person. That is the first element in the evaluation required by the section. The second is whether any risk against which there is a need to act is appropriately to be met by an order suspending the practice of a registered medical practitioner in accordance with s.66(1)(a) or whether the less severe action involving the imposition of conditions as the Board (or its delegates) “considers appropriate” will afford the required protection.

The categories of complaint in this case have been referred to elsewhere in this judgment. The delegates raised during the hearing and referred in their written reasons to particular complaints concerning matters related to the administration of treatment by the plaintiff as distinct from allegations by way of complaint as to the use of intemperate or inappropriate language or the matter of interpersonal relationships etc.

The complaints relating to inadequate history-taking from patients, those raising issues of informed consent, any alleged rigidity in approach in dealing with patients, issues concerning the assessment of risk factors associated with patients who are prescribed medication or have medical problems (eg, blood pressure) were matters explored in relation to complaints touching or concerning what the delegates termed “clinical competence and consequence risk to public safety …” (reasons for decision, p.18).

A number of complaints raised allegations as to the following:- (a) On or about 5 July 2005, patient X – the issue of explanation for proposed treatment (Further Amended Notice of Complaint, paragraph 26). (b) On or about 16 January 2007, patient I – the issue of the need for manifestations of pain indicating the need for pain relief (Further Amended Notice of Complaint, paragraph 67). (c) Issues concerning exposure of patients to the risk of bleeding capable of being reduced by the adoption of identified measures (Further Amended Notice of Complaint, paragraph 68(c)). (d) November 2002 to March 2006, the issue of informed consent in the respects alleged (Further Amended Notice of Complaint, paragraph 72(k)).

The combination of complaints such as these and which are identified in the delegates’ written reasons (pp.18 to 25) were matters that fall within the category of complaints associated with the plaintiff’s clinical practice. These were said to generate “considerable concern for the delegates …” .

The complaints, of course, are in the nature of accusations or allegations. It need hardly be said, but I nonetheless record in fairness to the plaintiff, that observations by the delegates in relation to them were not suggested and cannot, in any event, constitute factual findings in relation to such matters.

The delegates in examining the material before them and utilising their respective skills and knowledge as specialist medical practitioners, and having raised such matters with the plaintiff during the hearing, were, for the purposes of the function required of them under s.66(1), entitled to have regard to the particular complaints, their number, frequency and patterns and the plaintiff’s responses as material available to guide them in the evaluation of the two fundamental matters to be considered under s.66(1) as discussed earlier in this judgment.

In assessing the contention of “unreasonableness” in judicial review proceedings, it is necessary to consider relevant principles where a decision-maker is empowered to take action if satisfied of the existence of specified matters. The matters to be decided by the decision-maker may involve determining straight-forward issues of fact. However, others may involve matters of evaluation, including matters involving professional standards.

In Buck v Bavonne (1976) 135 CLR 110, Gibbs J noted that the nature of the matters of which a decision-maker is required to be satisfied often largely will indicate whether his or her or its decision can be effectively reviewed by the courts.

In that case his Honour stated:- “… it is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied . In all such cases, the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, when a matter of which the authority is required to be satisfied is a matter of opinion or policy or taste, it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts. Hughes & Vale Pty Limited v New South Wales [No 2] itself was a case of that kind. Where the authorities require to be satisfied of the existence of particular matters of objective fact, the position may be very different. It may then be possible to show clearly not only that the material facts existed but that an authority acting in accordance with its duty could have reached no other conclusion than that they existed. Under s.18(2) of the Act, the matters of which the Board must be satisfied before an applicant will be entitled to registration are clearly defined, and they do not permit the Board to exercise any judgment as to the fitness of the applicant or to apply its own notions of policy in reaching its decision …” (emphasis added)

The evaluation of the issue of risk, the need to take action and the determination of what action is to be taken under s.66(1) of the Act, each involved matters of opinion and evaluation by the delegates in the present proceedings. Ultimately, that evaluation requires an assessment, on limited materials available to the delegates, on matters concerned with clinical standards and practice. The conclusions to be reached under s.66(1) then involved specifically the determination of risk, and whether action was ‘necessary’ for the specified purpose in terms of s.66(1)(a) and (b).

As to what action is “necessary” , raised matters that involved matters of expert opinion and judgment. In Thomas v Mowbray (2007) 237 ALR 194 at 226, Gummow and Brennan JJ quoted dicta from the Supreme Court of the United States. Their Honours there (at [101]) observed:- “In McCulloch v Maryland , the Supreme Court of the United States said of the term ‘necessary’:- ‘Does it always import an absolute physical necessity, so strong, that one thing to which another may be termed necessary, cannot exist without that other? We think it does not. If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end, it is generally understood as employing any means calculated to produce the end, are not as being confined to those single means, without which the end would be entirely unattainable … [The word ‘necessary’] has not a fixed character, peculiar to itself. It admits of all degrees of comparison; and it is often connected with other words, which increase or diminish the impression the mind receives of the urgency it imports.”

The delegates’ decision in terms of the action to be taken under s.66(1)(a) or (b) (suspension or the imposition of conditions), has been the subject of separate submissions for the plaintiff, involving, as it does, an evaluation of the kind referred to above. I have closely considered the arguments put on behalf of the plaintiff and, in particular, their significance in terms of the action taken under s.66.

The delegates separately considered this question in part 5 of their written reasons at pp.28 to 30. On the question of the appropriate action under s.66(1), they identified specific issues including the following:- (a) The matters specified in the second dot point on p.28 concerning “clinical judgment” and referred to at the end of p.28. (b) The assessment issue referred to in the third dot point on p.28 of the reasons for decision. (c) The factors relevant to sufficiency of protection by the imposition of further conditions. (d) The effectiveness of protection arising from the imposition of conditions (p.29). (e) The plaintiff’s attitude to the imposition of further conditions (p.30) and the utility of the imposition of conditions, having regard thereto.

Where, in a particular case, the matters of concern identified by a decision-maker under s.66(1) relate to issues concerning a registered medical practitioner’s clinical performance, the decision-maker will, in considering whether the imposition of conditions will provide the necessary protection, often need to assess the extent of confidence and trust that may be placed in the practitioner so far as his or her compliance with any conditions given especially where constant monitoring or supervision is impracticable.

I, of course, express no conclusion upon what assessment of matters such as these the Medical Tribunal could or may make in the present case and, in particular, whether the imposition of conditions may or may not provide the required protection against any risk established on evidence before it. It is sufficient for the purpose of the present proceedings to say, that having examined the complaint material and having heard from the plaintiff, and having regard to the nature of the matters of which the delegates were required to be satisfied, I do not consider that it has been established in the present proceedings that the delegates erred in their evaluation by applying an incorrect test in the function performed by them under s.66(1) or in one or other of the ways specified in Buck (supra) or in terms of “unreasonableness” or “irrationality” argued in the present proceedings. Ground 8: Improper taking into account of “mere concern” of “possible” impairment

In relation to the issue of “possible” impairment, the delegates had, as earlier noted, reports of Dr Allnutt and the plaintiff made available at the hearing a copy of the report made by Dr Westmore in 2003.

The significance of the word “possible” in this context was addressed in the reasons for decision at pp.25 to 28.

The delegates referred to observations made by Dr Allnutt and to their own observations of the plaintiff during the course of the hearing and to the recommendation of Dr Westmore some five years previously that the plaintiff have psychiatric follow-up but that such had not occurred.

It was observed in Ms Richardson’s written submissions that the delegates used language such as “to suggest” possible impairment and as to the nature of disorders that “may” be relevant and to the “possibility” of impairment.

This ground was addressed in the Plaintiff’s Outline of Supplementary Submissions dated 30 January 2008 (paragraphs 3 to 7). The submissions therein rely upon the fact that there could not have been, in the circumstances of the case, any effective referral pursuant to s.66C which contained special provisions on the subject of “impairment” .

In response, Ms Richardson, in her written submissions (paragraph 117), submitted that the plaintiff’s supplementary submissions “erroneously proceed on the assumption that the delegates under s.66C … or that s.66C is somehow otherwise relevant” . She submitted that that section was not relevant because the Board did not, in fact, take action on the basis of an opinion that the practitioner “suffers from an impairment” : s.66C(1). The submission was that the delegates did not decide that the plaintiff was impaired in accordance with the provisions of the Act. As such, the delegates did not invoke s.66C at all. This was underlined by the terminology in which the matter is discussed in the reasons for decision. It was further contended for the Board that it is plain that the delegates understood the proper test that they were to apply under s.66 and that question of a “possible impairment” was a matter that could be taken into account in applying s.66 along with other issues discussed in the reasons for decision.

The submissions made on behalf of the plaintiff do not, in any event, identify any ground, based on s.66C, which could be said to invalidate any decision made under s.66 even if there was a conclusion by the delegates that there was an actual impairment.

In the Plaintiff’s Supplementary Written Submissions (paragraph 6), it was submitted that the delegates impermissibly took into account a matter which s.66C indicated should only be taken into account where the delegates formed an opinion of actual impairment, rather than, as they did, hold a mere concern that the doctor might possibly be impaired. On that basis, it was submitted that they had taken into account a matter “incapable of referral pursuant to either s.66B or s.66C …” (paragraph 7).

I have concluded that, in taking account, as but one relevant factor, the issue of “possible impairment” that the delegates, did not, as claimed, “impermissibly (take) into account a matter that purportedly fell within the provisions of s.66C” .

Accordingly, I do not consider that this ground can be said to raise a matter that establishes invalidity. Ground 9: Inadequate and late referral to the HCCC

At the hearing, the plaintiffs was granted leave to amend the amended summons so as to read:- “2A A declaration that the defendant’s letter dated 7 January 2007 purporting to refer to the Health Care Complaints Commission the matters giving rise to a suspension is void and of no effect for the purpose of s.66B of the Medical Practice Act 1992.”

The plaintiff contended that the referral under s.66B was “late” . It was submitted that the date the Board took “any action” within the meaning of s.66B(1) was either on 18 December 2007, when the Board gave notice of its intention to suspend the plaintiff, or 19 December 2007, when the suspension took effect.

In either case, it was submitted, that the referral to the Commission by letter dated 7 January 2008 in purported compliance with the section was late by some 12 to 13 days. In the result, it was observed that even if the referral was effective (which it contended it was not) the Board took three times as long as the maximum period to make it.

Section 66B(1) states:- “The Board must, as soon as practicable, after taking any action under s.66 and, in any event, within 7 days after taking that action, refer the matter to the Commission for investigation.”

The defendant relied upon correspondence from Ms St Hill to the HCCC. Following the decision to suspend the plaintiff on 18 December 2008, the Board immediately e-mailed the solicitor at the HCCC informing the Commission, in the language of s.66B(1), of “action taken under s.66” . The defendant submitted that the e-mail of 18 December 2007 satisfied the requirements of s.66B that the “matter” be referred to the Commission for investigation.

As at 18 December 2007 (when the seven day period referred to in s.66B(1) commenced) the reasons for the decision of the delegates was not available. There is no statutory requirement for the Board to set out its written reasons. In such circumstances, it was contended on behalf of the Board, that the referral of the matter on 18 December 2007 could not depend on the fact that the reasons for decision were not then available.

The reasons for the delegates’ decision was first made available to the plaintiff’s solicitor on 7 January 2007. On the same day, the reasons, together with materials that had been made available to the delegates, was sent to the HCCC.

The Board’s submission was that if (which was denied) the e-mail sent on 18 December 2007 did not meet the procedural requirement under s.66B(1), then the letter written on 7 January 2008 certainly did.

Finally, it was submitted on behalf of the Board, that even if there was a procedural irregularity under s.66B, that the procedure under that section was directory and not mandatory. Non-compliance with such a provision, the Board contended, did not result in invalidity: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

It was contended that, as the referral under s.66B can only arise after a decision has been made under s.66, the requirement for the referral within the seven day period could not be seen as mandatory in the sense of affecting the validity of a decision under s.66. Any non-compliance alleged, it was argued, could not have affected any rights of the plaintiff in relation to the s.66 decision.

The submissions on behalf of the plaintiff, apart from the contention as to lateness, proceeded upon the basis that the referral under s.66B(1) must contain “allegations” and that the notice sent did not.

I am unable to accept this latter submission. Section 66B(1) does not specify terms of any referral. In particular, there is no requirement for the Board to set out accusations or allegations when referring “the matter” to the Commission. The purpose of the referral is to institute a process of investigation and, whilst particular complaints had been received by the Board, until the factual matters subjacent to them had been fully investigated, it would hardly be appropriate, at the point of referral, for the Board to formulate allegations yet to be properly investigated as envisaged by the Act.

The e-mail from Ms St Hill on 18 December 2007 (Exhibit 3) conveyed to the Commission that a decision suspending the plaintiff from practising medicine for a period of eight weeks had been made under s.66 and that the Commission would be sent the relevant documents and the decision “as soon as it becomes available” . Although not expressed in terms of s.66B(1), it may readily be inferred that the purpose of the e-mail communication was to refer the matter to the Commission, at least by the initial step of advising what is referred to in the e-mail as “Dr Lindsay’s s.66 result” .

I note that the word “refer” means: “commit or hand over a question, cause or matter to some authority for consideration, decision, execution” : Shorter Oxford English Dictionary.

The e-mail foreshadowed that steps would be taken to send the relevant documents and the decision to the Commission and again, in the context in which a decision had been made under s.66, it may, in my opinion, be readily inferred that the purpose of later sending the documents was to complete the process relevant to a referral. Ground 10: The delegation from the Board

The plaintiff’s written submission dated 31 January 2008 was made prior to the tender of Exhibit 5 on 1 February 2008. Accordingly, that submission was confined to Exhibit D, dated 26 November 2007, the Notice of Appointment Dr Mares and Dr Edwards.

Mr Ireland’s oral submission on 1 February 2008 briefly contended that there was a limitation on the general delegation by the Notice of Appointment by reason of the appointment “to conduct an inquiry” (transcript, pp.57, 111 to 113). He accepted that the point was one of construction. He submitted Exhibit D was not itself a delegation. The delegation was effected by clause 3.4 of Exhibit 5 and it is the Board, not the Registrar, who effects the delegation. The Notice of Appointment only gave approved to conduct an inquiry.

In considering the issue, it is first necessary to examine the terms of the delegations. Exhibit 5 records:- “In accordance with powers conferred under s.136(1) of the Medical Practice Act 1992, the New South Wales Medical Board makes the following delegations. 3. Complaint and discipline … 3.4 To the Conduct Committee or in the event that exercise of power is required between meetings of the Conduct Committee, to two persons approved by the Registrar, its power to act Under Part 4, Division 5 of the Medical Practice Act.”

By that delegation, the Board, accordingly, delegated its powers, inter alia, under Division 5 of Part 4 which includes the powers under s.66.

The Notice of Appointment, Exhibit D, is in the following terms:- “ Notice of Appointment In accordance with the power delegated to me by the New South Wales Medical Board under s.136 of the Medical Practice Act 1992 (the Act), I hereby appoint Dr Sarah Mares and Dr Keith Edwards to conduct an Inquiry pursuant to s.66 of the Act for the purposes of determining whether any action should be taken, either suspending or placing conditions upon Dr David Charles Lindsay’s (MP 248911, DOB: 20/09/1965, Bachelor of Medicine, Bachelor of Surgery, University of Sydney 1989) registration . AE Dix Registrar 27 November 2007”

The submissions of both parties proceeded upon the basis that regard is to be given to both Exhibit 5 and Exhibit D and it is upon their construction the issue of delegation arises and is to be resolved.

Ms Richardson submitted on behalf of the Board that clause 3.4 of Exhibit 5 is the source of the delegates’ power and that by the whole of the Board’s power under Part 4 Division 5 is delegated. A further aspect of the delegation involves the conferral of power upon the Registrar to appoint two persons approved by the Registrar as specified in clause 3.4.

As was accepted by counsel for the parties, the capacity to conduct an inquiry for the purposes of s.66 is not conferred by statute. The power to appoint persons to conduct an inquiry does not involve “a power to act under Part 4 Division 5 of the Medical Practice Act” . However, the power under s.66 is a statutory power under that part of the Act and it is clearly one of the powers referred to in clause 3.4 of Exhibit 5 which is delegated to the two persons approved by the Registrar.

The submission for the Board was that once the delegation had been made by the Board, all that remained was for the Registrar to approve the appointment of two persons to exercise the (already) designated power. That approval cam by the Notice of Appointment, Exhibit D.

I consider that the submission of the Board in this respect to be correct. On the question of construction, Exhibit 5 and Exhibit D must be read together in purposive way.

The delegation of power under Part 4, Division 5 by the Board “to act” under those provisions of the Act having been made the appointment of the delegates by the Notice of Appointment, whilst authorising them to conduct an inquiry, did so “for the purpose of determining whether any action should be taken, either suspending or placing conditions …” , the power to so determine having been delegated.

Exhibits 5 and D read together in this way, in my opinion, supports the construction that the appointment was for the purpose of the delegates so determining pursuant to the delegation that the Board had put in place. A contextual approach in construing the terms of the Notice of Appointment (in light of Exhibit 5) is, in my opinion, best calculated to reveal the purpose and effect of each interacting to link the acts of general delegation and appointment. In doing so, one is, of course, mindful that the Notice of Appointment is not a statutory instrument and therefore not to be read as having legislative character.

I, accordingly, am of the opinion that the terms of the Notice of Appointment did not operate as was contended for by the plaintiff as a limitation on the general delegation under clause 3.4 of Exhibit 5. Discretionary matters

In Lloyds v Veterinary Surgeons Investigating Committee & Anor [1999] NSWCA 68, Priestley JA (with whom Mason P and Stein JA agreed) referred at [13] in the remarks of Kirby P in Ackroyd v Whitehouse (1985) 2 NSWLR 239 at 248 wherein it was stated that the Court “has often indicated a disinclination to provide discretionary relief in the nature of the prerogative writs against a single member of the Industrial Commission, where the facility of internal appeal has not been utilised” . Priestley JA went on to observe that (at 248):- “… this disinclination applies to prerogative relief generally where the facility of internal appeal is readily available. The court’s practice appears to have been recognised by the explicit provisions of s.123 of the ADT Act. The court’s practice is not invariable; as Kirby P also said in Ackroyd , ‘the rule is neither inflexible nor universal. It is simply a sensible principle of restraint, allowing for the efficient and proper use of judicial time and of the remedies involved ...”

In NSW Breeding & Racing Stables Pty Limited v Administrative Decisions Tribunal of New South Wales [2001] NSWSC 494, Barrett J made observations on the preliminary question in that case as to whether the Court should decide the plaintiff’s application seeking judicial review with respect to two decisions of the Administrative Decisions Tribunal of New South Wales.

In that case, his Honour set out the relevant statutory provisions including, in particular, those providing for a statutory appeal. Following reference to the judgment of Kirby P in Boral Gas (NSW) Pty Limited v Magill (1993) 32 NSWLR 501 and other decisions referred to, his Honour observed at [16]:- “… the message from those sources was consistent, namely, that ordinarily the judicial review jurisdiction will not be exercised where there is an alternative remedy by way of appeal; and that that general rule will be displaced only by ‘exceptional circumstances’. It was emphasised, however, that the judgment is one which must be made according to the circumstances of each case and that what I have termed the ‘general rule’ should not approached as if it were a statutory prescription.”

Barrett J then set out relevant considerations supporting the general approach referred to above as formulated by Kirby P in Ballam v Higgins (1986) 17 IR 131 at 132 as follows:- “1. It recognises and gives effect to the legislative scheme provided by Parliament for internal appeals … 2. It affords a proper place to the specialised Tribunal which may have superior advantage in ready knowledge of the development of jurisprudence under scrutiny which this Court does not initially enjoy. Furthermore, that Tribunal frequently has a superior armoury or remedies at its disposal than this Court can offer; 3. Whilst it may involve the possibility of additional cost or delay, it affords this Court the advantage of having the opinion of the appellate tribunal should the tribunal determine the question of jurisdiction and should it still be the intention of a party to challenge jurisdiction; 4. It allows complete exhaustion of any additional factual issues which may be relevant to establishing the facts said to ground jurisdiction, which facts may more readily be determined below than in this Court; and 5. It conserves to cases where no other remedy exists, that discretionary and exceptional remedies provided by writs in the nature of prerogative writs and recognises the pressure of business in this Court, including in the exercise of its general supervisory jurisdiction.”

Although I have determined the grounds relied upon by the plaintiff in the present application adversely to him, I am of the opinion that, had the question of discretion arisen for determination, then, aside from the issue of delegation, on discretionary grounds it would have been properly open to me to have declined to exercise its jurisdiction.

The grounds relied upon by the plaintiff, in my opinion, raise matters that are best dealt with by the statutory right of appeal to the Tribunal. Whilst issues of procedural fairness may, in some cases, present a discrete issue suitable for determination in this Court (as in X v NSW Medical Board (supra)), in the present case much of the argument, in particular, the oral submissions for the plaintiff, was directed to the identification by the delegates of issues of concern which in turn involved matters of evaluation and expert opinion. The broad nature of the statutory appeal adequately permits such matters to be considered by the Tribunal comprised as it is by the Chairperson or a Deputy Chairperson and two specialist medical practitioners. The important issues, both from the plaintiff and the public points of view as to the appropriate type of action under s.66(1) (including matters argued in these proceedings as to proportionality) may be dealt with in the appeal that has been made to the Medical Tribunal in the light of any evidence adduced relevant to such questions.

It is also relevant to bring into account that any review of a Medical Tribunal decision by the Supreme Court would be by way of proceedings pursuant to s.48 of the Supreme Court Act 1970 to the Court of Appeal, not to a single judge of the Court. The benefits of this process of review was, as submitted on behalf of the Board, that allowing the statutory appeal process to takes its course results in additional benefits. These include, firstly, the fact that decisions of specialist Tribunals increases the body of decisions produced within the statutory system established by the legislature. Secondly, the Court of Appeal in those circumstances, will have the advantage of the decision of the specialist Tribunal in the event that judicial review of its decision is sought. Conclusion and decision

For the reasons set out above, the plaintiff is not entitled to the declarations and orders sought.

I am satisfied that the Medical Practice Act 1992 makes adequate provision under Part 4 of the Act to seek alternative review of the action taken against him under s.66. Section 95(1) specifically deals with the issue of “supervision” and “extension of suspension by the Board under Part 4” .

The relief sought in the Further Amended Summons is accordingly refused.

I will provide the parties with the opportunity to make submissions on the question of costs and provide to my associate within seven days short minutes of order to give effect to this judgment and the order to be made as to costs.