Rahman v Health Care Complaints Commission

1. [1]

   BELL P: I agree with Basten JA.

2. [2]

   BASTEN JA: The appellant, Bassel Abdul Rahman, is a medical practitioner. On 18 May 2021, following a hearing at which he was found to have engaged in unsatisfactory professional conduct and professional misconduct, the Civil and Administrative Tribunal, Occupational Division, cancelled his registration and directed that he not seek a review of the order for a period of 12 months.

3. [3]

   Pursuant to a notice of appeal filed on 10 June 2021, the appellant challenged both the adverse findings as to his conduct [1] and the disciplinary orders made by the Tribunal. [2] An amended notice of appeal was filed on 28 July 2021 which particularised in more detail the challenge to the disciplinary orders. The challenge to the underlying findings of misconduct was abandoned.

4. [4]

   Although there is no challenge to the underlying findings concerning misconduct, it will be necessary to outline the factual bases on which those findings were made, in order to consider the challenge to the disciplinary orders. Before doing that, however, it is convenient to note the interlocutory steps which have been taken pending determination of the appeal.

Interlocutory steps

1. [5]

   As is not uncommon in such cases, the practitioner had been subject to conditions on his registration imposed by the Medical Council, whilst the complaints were outstanding. These are relevant, in part, because the appellant’s case was that a continuation of those conditions on his right to practice medicine would have been a sufficient protective order for the Tribunal to have made once the complaints had been determined. In fact, the regime which was in place before deregistration was ordered by the Tribunal has since been reinstated. How that occurred requires attention.

2. [6]

   The lodging of an appeal does not stay the orders made by the Tribunal; further, steps having been taken to remove his name from the register of practitioners, there was nothing further to stay. Nevertheless, on 25 June 2021 an order was made in the following terms:

3. [7]

   No consideration was given to the power to make such orders because the Health Care Complaints Commission (Commission) “accepted that it was open to the Court to make a restorative interlocutory order of the kind described by McCallum J … in Attia v Health Care Complaints Commission [2017] NSWSC 178.” [4] The power to make such an order was expressly addressed in Attia, commencing with the following proposition:

4. [8]

   As McCallum J further noted, a similar view had been taken in relation to the absence of power to order reregistration or reinstatement of a medical practitioner on an interim basis pending the hearing of an appeal under the Medical Practice Act 1992 (NSW). [5] McCallum J sought to distinguish that case on the basis that s 90(3) of the Medical Practice Act conferred a power on the Supreme Court to stay any order made by the Tribunal until the determination of the appeal. In circumstances where no other power had been relied upon, McCallum J said of Handley JA’s reasoning that, “his Honour may have taken the view that the express reference in that provision to a ‘stay’ excluded any other kind of order by implication.” [6]

5. [9]

   This reasoning is, with respect, unpersuasive on four bases. First, the power which may have been excluded by implication was said to arise from s 66(4) of the Supreme Court Act 1970 (NSW), providing that the court may grant an interlocutory injunction “in any case in which it appears to the court to be just or convenient so to do.” The suggestion that this power was thought to have been impliedly excluded by an express power to grant a stay is mere speculation; the better view is that no-one in McBride, including Handley JA, thought that, if a stay were not available, s 66 of the Supreme Court Act, providing for restraining orders in respect of a threatened or apprehended breach of contract or other injury, would be engaged.

6. [10]

   Secondly, the point of distinction is unpersuasive. While there is no specific power to grant a stay in the Health Practitioner Regulation National Law (NSW) (National Law), a generic power to grant a stay on appeal is found in the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.44. A similar power was available in Attia, as reflected in UCPR r 50.7.

7. [11]

   Thirdly, s 66 of the Supreme Court Act cannot be invoked without addressing two further matters. [7] First, the section is in terms limited to injunctions restraining conduct and threatened conduct. [8] It is far from clear that the provision permits an order imposing a mandatory obligation. Secondly, the proposed order is one binding (and imposing obligations on) a third party to the litigation, namely the Australian Health Practitioner’s Regulation Agency. The headnote to Attia identifies the Agency as a “proposed second defendant” but no such order was made (perhaps because the application was dismissed on the merits). However, the basis upon which the Agency could properly be joined is unclear: it was not a party to the proceedings in the Tribunal, nor had it committed any act in breach of its statutory functions.

8. [12]

   Fourthly, no judicial authority supported the principle. The statement at [25] in Attia, set out above, referred to AVS v Commissioner of Police. [9] McCallum J returned to that case later, noting that s 60(2) of the Administrative Decisions Tribunal Act 1997 (NSW) contained a broader power than merely granting a stay:

9. [13]

   That provision dealt with a decision of an administrative officer under review by the Tribunal. It had no relevance to the powers of the Supreme Court on an appeal from the Tribunal. As to s 60(2), Campbell JA (with whom Handley AJA agreed) stated:

10. [14]

    There was nothing in AVS which cast doubt on the proposition that a power to grant a stay does not extend to the reinstatement of an earlier state of affairs which is no longer in place. The same conclusion was reached by Schmidt J in Deano v Health Care Complaints Commission [2011] NSWSC 1570, to which McCallum J also referred.

11. [15]

    The only authority permitting a contrary view (which McCallum J correctly understood to be distinguishable) was one undertaken in relation to a legal practitioner which invoked the inherent jurisdiction of the Supreme Court over legal practitioners, a jurisdiction which does not extend to medical practitioners or other health professionals: see Russo v Legal Services Commissioner. [11] The judge in Russo, Barrett AJA, identified the “only possible source of power” to make such an order as s 46(2)(b) of the Supreme Court Act, which allows a judge of the court “to make any order or give any direction in any appeal or other proceedings, but not an order or direction involving the determination or decision of the appeal or other proceedings.” Barrett AJA then observed:

12. [16]

    Despite the reference in the last line of that passage to an undertaking, such an undertaking could not confer power on the Court which it did not otherwise have. The judge then considered, but dismissed, a concern that an order countermanding the Tribunal’s order would infringe on the qualification to the power conferred by s 46(2)(b), because it would equate to a final disposition of the appeal: at [10]. Barrett AJA noted that because the Court had inherent jurisdiction to remove a legal practitioner’s name from the role, “if the alternative order turns out to be the operative order, it will be open to the Court of Appeal, having heard the appeal on its merits, to make a new order for removal from the roll.”

13. [17]

    In any event, the discussion of s 46 of the Supreme Court Act is irrelevant for present purposes. Section 46 does not provide a source of power; rather it identifies the extent to which the Court of Appeal’s powers can be exercised by a single judge. The conferral of a particular power must be found elsewhere.

14. [18]

    Neither principle nor the weight of authority, including two judgments in this Court, provided any support for the proposition that a “restorative interlocutory injunction” could be relied on to undo the effect of an order which has already been carried into effect. To the extent that Attia asserted the existence of a power to make an “interlocutory restorative order” of the kind made in these proceedings, it should not be followed. The order made in the present proceedings should not have been made. It will be necessary to return in due course to the consequences of the interlocutory order.

The findings of misconduct

1. [19]

   The first complaint alleged that the appellant was guilty of unsatisfactory professional conduct under s 139 of the National Law, being conduct which involved inadequate judgment or care, or was improper or unethical. The particulars identified:

   1. (1)

      inappropriate prescribing of testosterone and anabolic steroids to nine patients;

   2. (2)

      inappropriate prescribing of benzodiazepines to 13 patients;

   3. (3)

      inappropriate prescribing of drugs of addiction to 17 patients, and

   4. (4)

      inappropriate prescription of Schedule 4 drugs to four patients.

2. [20]

   The details of the various offences were set out in schedules relating to each patient and covering 108 pages of the complaint filed in the Tribunal. The conduct extended over a period of years between 2011 through 2015 (some five years in total). He prescribed for himself diazepam, oxycodone and phentermine between November 2013 and July 2015. In the case of one patient (Patient D) the practitioner prescribed temazepam, diazepam, alprazolam, oxazepam, buprenorphine (patch), pethidine hydrochloride (injection), fentanyl and oxycodone to this patient over the period from 14 March 2011 to 17 August 2015.

3. [21]

   All of the particulars of complaint 1 were admitted by the practitioner, with the qualification that, although he did not know that he had to report the theft of the medication from his car to the Health Department (and did not), nevertheless he reported the matter to the police and to his lawyer.

4. [22]

   Complaint 2 alleged a failure to make and keep adequate clinical records for some 26 patients. He admitted that complaint. Complaint 3 alleged that in engaging in the unsatisfactory professional conduct set out in complaints 1 and 2 his conduct was sufficiently serious to justify suspension or cancellation of his registration and was therefore professional misconduct, under s 139E of the National Law. That too was admitted.

5. [23]

   This conduct did not go unnoticed throughout the years. Indeed, it is of some importance to the practitioner’s case that various disciplinary measures were taken prior to the filing of the present complaint in September 2019.

6. [24]

   The earlier history was as follows. The practitioner commenced general practice in 2001. In November 2008 a complaint was lodged with the Commission in relation to his prescription of drugs. In May 2009 the complaint was referred to the New South Wales Medical Board and a performance review was conducted. In December 2009 the Pharmaceutical Regulatory Unit completed its review of the complaint, which it reported to the Commission which in turn referred the review to the Medical Council.

7. [25]

   Another complaint was received in December 2009 in relation to prescription of scheduled drugs, leading to a performance interview in June 2010. The practitioner was counselled on the need to improve his skills in weaning patients off Schedule 8 and Schedule 4 drugs, and particularly benzodiazepines. Some seven months later he commenced prescribing diazepam, alprazolam, clonazepam, oxycodone and hydromorphone to Patient X, conduct which continued until July 2015.

8. [26]

   In February 2011 the practitioner underwent a further performance assessment. The assessors commented on deficiencies in his record-keeping and expressed concern that he lacked understanding of the correct authority for prescribing Schedule 8 drugs. They recommended that he be counselled. Two weeks later, in March 2011, he commenced prescribing morphine sulphate, oxycodone, diazepam, alprazolam and temazepam to Patient O. The prescribing continued until 31 August 2015. Other prescribing of such drugs to other patients commenced in March, April, June and July 2011 and then in January 2012. In November 2012 he moved from a medical practice in Chester Hill to a healthcare centre in Bankstown. The prescription of schedule drugs continued. In March 2013 he was contacted again by the Pharmaceutical Regulatory Unit regarding a drug of addiction prescribed to a drug dependent person. In the following months he continued prescribing benzodiazepines and other drugs to continuing patients and to new patients commencing in April, May, July, September (two patients), November and December (two patients). He commenced self-prescribing valium in November 2013.

9. [27]

   In June 2014 he was involved in a physical attack.

10. [28]

    In October 2015 the Pharmaceutical Services Unit made a further complaint to the Medical Council. On 28 October 2015 the Medical Council undertook a hearing, and provided its decision on 19 November 2015. The following summary was included in its report (p 2):

11. [29]

    In discussing the practitioner’s evidence, the delegates stated (at p 13):

12. [30]

    The delegates considered suspending his registration, but decided that the public would be adequately protected by the imposition of conditions on his practice. Fourteen “public” conditions and eight “private” conditions were imposed. One of the public conditions required him to submit to “an audit of his medical practice by a random selection of his medical records by a person nominated by the Medical Council of NSW”, with the first audit to be held within six months from 30 October 2015 and subsequently as required by the Council. He was also required to practise under “category B supervision in accordance with the Medical Council of NSW’s Compliance Policy – Supervision”: condition 13.

13. [31]

    A performance assessment report prepared for the Medical Council dated 28 October 2019 noted that a further hearing had been conducted in relation to the exercise of powers under s 150 of the National Law on 3 April 2018, following notification that he had been charged with indecent assault of a female patient. At that time further conditions were imposed on his registration. The report noted that the most recent audit of 13 December 2018 had identified “unsatisfactory standards of five from twenty records and raised concerns regarding Dr Rahman’s compliance with his conditions.” A further hearing was convened and further conditions imposed on his registration, including a condition requiring the practitioner to undergo a “performance assessment”. It will be appropriate to return shortly to the summary of the interview conducted by the assessors on 26 August 2019.

14. [32]

    In its second decision, delivered on 18 May 2021, the Tribunal noted the events following the imposition of conditions on 30 October 2015:

15. [33]

    This report, by two medical assessors, was not binding on the Medical Council, nor on the Tribunal. It envisaged that the conditions on the practitioner’s registration would continue indefinitely.

16. [34]

    The practitioner asserted that he had suffered an autoimmune condition diagnosed as “hereditary periodic fever syndrome” which was described by Associate Professor Sean Riminton, a clinical immunologist whom the practitioner first consulted in March 2014 as “either very rare or has not been previously described”. He described the condition as a “significant psycho-social stressor, and in his case diagnostic uncertainty and lack of clarity with respect to prognosis are undoubted additional concerns.” [13]

17. [35]

    The practitioner had also consulted, intermittently, a psychiatrist, Dr Robert Fisher. The matters about which he was consulted arose when the practitioner was “stressed about his traumatic experience with the axe wielding patient outside the clinic” and by “accusations of sexually inappropriate behaviour which [were] subsequently dismissed in Court.” [14] The consultations were mainly in 2018 with one appointment in May 2019 and another in March 2020. Dr Fisher found no causal relationship between either PTSD or the autoimmune disease and his inappropriate prescribing.

18. [36]

    Following the imposition by the Medical Council of a condition requiring supervision, the practitioner nominated a general practitioner at the Miranda Medical Centre to be his supervisor. That person, Dr Mary Joseph, provided supervision reports from March 2016 to April 2020. They were entirely favourable. However, the Tribunal further noted:

19. [37]

    Unsurprisingly, the Tribunal appears to have placed little weight on her reports and evidence. [15]

20. [38]

    Before turning to the “observations”, or findings, of the Tribunal, two aspects of the respondent’s evidence should be noted. First, as recorded by the Tribunal in its second decision, the practitioner gave evidence to the following effect:

21. [39]

    It thus appears that, at the time of the hearing before the Tribunal in 2021, the practitioner was asserting that the conditions he identified had significantly impaired his ability to practise. That was inconsistent with the view expressed by Dr Fisher, as the Tribunal noted at [50]. In its observations, the Tribunal stated:

22. [40]

    After then recording the failures of the practitioner to deal with issues brought to his attention in 2007, 2008, 2009, 2011 and 2015, [16] the Tribunal continued:

23. [41]

    Finally, it is necessary to identify the findings of the Tribunal with which the practitioner took issue on the appeal. Importantly, the Tribunal commenced by referring to its findings in its first decision, of which no complaint was made on the appeal. Those findings followed an extensive summary of the expert reports with respect to each of the 26 patients. Those reports involved a multiplicity of findings (that is, several adverse findings with respect to each patient, many covering a significant period of conduct) which were described as conduct “below the expected standard” and which invited “strong criticism”. Given that the substance of all the complaints was admitted, it was unsurprising that the Tribunal accepted the findings of the experts and the opinions expressed by them in relation to each patient. However, the Tribunal continued with its own observations:

24. [42]

    Returning to the findings in the second decision, the Tribunal then set out what were described as “strikingly similar” factual circumstances in another case heard by the Tribunal in 2016. The purpose was no doubt to place reliance upon the fact that the disciplinary order in that case involved cancellation of the practitioner’s registration with a two-year period before an application to reinstate the registration could be made. The Tribunal then continued:

Grounds of appeal 7, 8 and 9

1. [43]

   The grounds of appeal challenging the disciplinary order made by the Tribunal were set out in four paragraphs of the amended notice of appeal, namely pars 7, 8, 9 and 10. Each identified a respect in which the Tribunal had “made error of law in the Stage 2 Decision”. The nature of the error in each ground was by no means clear and, in written submissions and in oral argument, counsel addressed grounds 7, 8 and 9 together, but separately from ground 10. That course should be adopted, as it makes sense of three potentially disparate grounds.

2. [44]

   The substance of the first challenge was that, in circumstances where the practitioner had conducted himself without giving cause for complaint for a period of some five years, while subject to stringent conditions, the cancellation of his registration was, in effect, manifestly disproportionate to any risk to the community if he were to continue to practice subject to the existing conditions. The first error (ground 7) was said to arise from the Tribunal’s reliance on the cases referred to in the reasons at [52], set out above. The practitioner accepted, as a matter of principle, that where a professional person had demonstrated by past misconduct a serious defect of judgment or understanding, it cannot be assumed from the mere passage of time that the defect has been rectified. However, the practitioner submitted that the Tribunal had drawn from the cases a further and impermissible inference, namely that a lengthy period without further misconduct was irrelevant.

3. [45]

   A related challenge to the Tribunal’s reasoning (ground 9) was that it had assumed, in the absence of evidence, or explanation, “that the sole and undoubted reason that the Appellant had not infringed on prescribing for at least five years was the imposition of conditions on his practice”.

4. [46]

   Thirdly, the practitioner contended (ground 8) that the Tribunal had failed to engage with his case which was that “the public interest could be protected by the Appellant being reprimanded with a continuation of the conditions that were presently on his registration having first been imposed in 2015”.

5. [47]

   There was a degree of tension within these challenges to the Tribunal’s reasoning. If the Tribunal should have found that the practitioner was fully “rehabilitated” or “reformed”, being language used in his submissions, then a continuation of the stringent conditions on his right to practice would have been unnecessary. If, on the other hand, the Tribunal was entitled to conclude that there was a significant risk of repetition of past misconduct if the conditions were to be lifted, a different question arose, namely why the Tribunal was not entitled to cancel the registration of the practitioner for at least 12 months on the basis that the public could not have confidence in a medical practitioner whose right to practice depended upon the maintenance of stringent restrictions.

6. [48]

   In the course of oral submissions, counsel for the practitioner sought to defuse that tension on the basis that he was someone in whom the public could have confidence if operating subject to conditions, “not because of any issue in relation to the fact that the practitioner is likely to ‘reoffend’, … but rather to assure the public that he won’t reoffend”. [17] However, the legal error in the Tribunal’s approach was said not to be manifest unreasonableness, but rather a failure to engage with the practitioner’s submissions in that regard.

7. [49]

   Thus, the central proposition underlying the first three grounds of appeal was that, in cancelling the practitioner’s registration for a minimum period of 12 months, the Tribunal failed to give proper consideration to an order which permitted the practitioner to continue to practice medicine, subject to current restrictions and subject to a reprimand.

8. [50]

   This submission was not only implausible, but could not be supported on the evidence. First, it is clear from the questioning of the practitioner on 17 February 2021 that members of the Tribunal were concerned about him continuing to practice. Thus, Dr Hooper asked: [18]

9. [51]

   Shortly thereafter, Dr Hooper asked further questions as to the operation of the medical centre where the practitioner conducted his practice and whether there were peer review sessions and other forms of support available. A second member of the Tribunal, Dr Fogarty, questioned the ongoing “state of play with seeing the psychiatrist.” [19] Dr Fogarty also questioned the practitioner as to how he had managed the administration of drugs for which he had written prescriptions. [20]

10. [52]

    The presiding judge asked the practitioner: [21]

11. [53]

    On the following day, 18 February 2021, Dr Robert Fisher, the practitioner’s treating psychiatrist at the time, gave evidence. (Dr Fisher lived in South Hobart and appears to have conducted his practice in New South Wales by video conference. [23] ) At the end of his cross-examination, Dr Hooper asked the following question: [24]

12. [54]

    Dr Fisher’s answer was not entirely responsive, but Dr Fogarty picked up the same issue and obtained a responsive answer: [25]

13. [55]

    There was further quite extensive questioning of Dr Fisher by the presiding judge. It ended with Dr Fisher opining that “if he was permitted to continue practising, then I do not believe that he should be permitted to write scripts for S4D or S8 drugs.” [26]

14. [56]

    When the Tribunal reconvened on 5 May 2021 for the “Stage 2” hearing, the practitioner again gave evidence. At the outset of the hearing, the presiding judge sought some indication as to the matters which would be dealt with over the ensuing two days. He invited the parties to talk to each other with the intention that some issues be negotiated. The following exchange then took place between Mr Aitken (for the Commission) and Mr Barnes (for the practitioner): [27]

15. [57]

    The practitioner gave an expansive answer-in-chief to a question from his counsel as to the ways in which he had found particular patients to be “difficult.” [28] The presiding judge interposed a question at the end of the explanation: [29]

16. [58]

    Again, there was extensive questioning by Dr Fogarty and Dr Hooper. [30]

17. [59]

    Both parties made submissions on the second day, 6 May 2021. The Commission’s counsel provided written submissions of that date, which set out in some detail both the circumstances relied upon by the Commission and the principles to be applied, including the statement in Health Care Complaints Commission v Litchfield [31] by Gleeson CJ, Meagher and Handley JJA, to the following effect:

18. [60]

    Counsel for the practitioner also provided written submissions, dated 4 May 2021. He relied upon the evidence elicited from Dr Fisher by Dr Hooper to the effect that “Dr Rahman could safely continue to practise without rights to prescribe s8 and s4D drugs which he would probably never be able to prescribe.” [33] He concluded that “[t]he public therefore would be protected by the Tribunal’s reprimanding Dr Rahman and ordering that his registration be subject to the conditions to which it is currently subject.” [34] The thrust of the oral submissions was consistent with the written submissions.

19. [61]

    It is convenient then to turn to the second decision of the Tribunal. The structure of the second decision has been considered above. There is no complaint about the manner in which the Tribunal dealt with the practitioner’s evidence (at [2] – [17]), including the following concluding passages:

20. [62]

    The Tribunal then set out the medical expert evidence (at [18]-[31]), before turning to the relevant principles. At [36], the Tribunal repeated the history of the practice restrictions including the finding by the performance assessment review of August/October 2019 that the practitioner’s conduct was “satisfactory” and that, “in view of the conditions already in place on Dr Rahman’s registration it is recommended that no further action be taken”: [36].

21. [63]

    As noted above, in making its findings, the Tribunal reminded itself of the absence of infringement for at least five years; the fact that the practitioner was performing a valuable community service as a medical practitioner and had expressed remorse for his past conduct: at [50]. However, the practitioner took issue with the statement that the non-infringement of the prescription restrictions was “no doubt due to the imposition of the conditions pertaining to his practice.” Counsel submitted that the statement was made without evidence or support in the reasoning.

22. [64]

    In fact there is a degree of elision in the first two sentences of [50]. The Tribunal cannot literally have meant that the non-infringement of the restrictions was due to the imposition of the restrictions. The sentence is better understood as involving two propositions, namely (i) the practitioner had not prescribed scheduled drugs because of the restriction on his registration, and (ii) there had been no infringement of that restriction. Both these statements are inferences of fact which were available to the Tribunal. Arguably both were, and certainly the latter was, favourable to the practitioner. That the Tribunal treated it as a favourable consideration is clear from its inclusion in one of two paragraphs ([50] and [51]) setting out matters favouring the practitioner.

23. [65]

    It was undoubtedly open to the Tribunal to conclude that the conduct the subject of the complaints was so serious, was undertaken over such an extended period, and in the face of multiple warnings, that no disciplinary order other than cancellation of registration for a period of not less than 12 months was appropriate. The practitioner does not contend that such an order was not available to the Tribunal. Rather his proposition was that the Tribunal did not give careful consideration to the factors which might have warranted non-cancellation. However, as the submissions noted above demonstrate, that was the focus of the Stage 2 hearing. The questioning of witnesses, including the practitioner himself, demonstrate beyond doubt that the Tribunal was fully focused on the question of current fitness to practice. It was open to the Tribunal to conclude that, despite the practitioner’s submissions to the contrary, a medical practitioner who could not be trusted to undertake the function of prescribing S8 and S4D drugs should be subject to orders of the kind made. It was open to the Tribunal to accept the Commission’s submissions that greater leniency would set a standard of delinquency, as described in Litchfield, which would diminish public confidence in the profession.

24. [66]

    The proposition that the Tribunal treated the significant period of non-infringement as irrelevant cannot be sustained; it follows that ground 7 must be rejected. The proposition that the Tribunal failed to engage with the practitioner’s case is contradicted by the course of the hearing at both stages, and the reasons given by the Tribunal read holistically; it follows that ground 8 must be rejected. The reading of the first two sentences of the Tribunal’s [50], set out at [64] above, means that ground 9 must be rejected.

Ground of appeal 10

1. [67]

   Ground 10 alleged an error of law on the part of the Tribunal in placing reliance “on matters which were not particularised or alleged against the Appellant”, referring to [54] of the Tribunal’s reasons. The ground was particularised as follows:

2. [68]

   The substance of the challenge in ground 10 was threefold, namely that (i) it was procedurally unfair to rely upon matters which had not been raised with the practitioner in evidence; (ii) there was no evidence that the hair loss therapies were unproven and (iii) there was no rational relationship between his willingness in the past to prescribe somatropin and his current interest in hair loss therapies.

3. [69]

   Particular (c) was intended to be a reference to the requirement under s 165M(2) of the National Law that the Tribunal give reasons for its “decision”. That particular may be disposed of first. First, the section relevantly provides:

4. [70]

   There is no doubt that the second decision of the Tribunal complied with s 165M(2). In oral submissions, counsel for the practitioner stated there had been a failure to comply with pars (a) and (b) of subs (2). [35] There was no non-compliance because a particular inference which formed part of the reasoning was not set out, or the supporting evidence not identified. As explained by Gleeson CJ in Minister for Immigration and Multicultural Affairs v Yusuf, [36] dealing with similar language in s 430 of the Migration Act 1958 (Cth):

5. [71]

   There would be no basis for the practitioner to seek an order requiring compliance with s 165M(2), on the basis that the decision under consideration did not satisfy the statutory obligation. Further, the complaint is otiose: if there were no evidence to support the finding (as separately alleged) there could have been no satisfactory reason for drawing the inference. On the other hand, if there were some evidence, it should properly be identified if it leads to a finding of a material question of fact. If there were no rational basis for relying upon the pursuit of hair loss therapies, there would be no material fact to be established.

6. [72]

   Before turning to the manner in which the issue arose in the course of the hearings before the Tribunal, it is convenient to dispose of particular (d). Although ground 10 referred only to findings at [54], it is clear that those findings are to be understood in the context of the preceding paragraph. Somatropin is a synthetic human growth hormone. As discussed in the first decision, in relation to Patient Y, the practitioner had prescribed somatropin for general well-being and “post op recovery” which were, for reasons identified, not recognised therapeutic purposes. [37] Similar complaints were made with respect to Patient L and Patient R. [38] If there were a basis for treating the hair loss therapies as unproven, the connection with the earlier misuse of somatropin is patent and undoubtedly a legitimate matter of concern to the Tribunal.

7. [73]

   It is convenient to turn to the manner in which the question of hair loss therapies was addressed in the evidence. In fact the issue was first raised in the evidence by the practitioner. His own statements, in various contexts, indicated that he went to Turkey in order to obtain training in the treatment he proposed to use. That was the treatment described in the performance assessment report as unproven.

8. [74]

   Reference has already been made to the performance assessment undertaken with the practitioner on 26 August 2019, as reported in the performance assessment report dated 28 October 2019. Annexure C to that report summarised the interview with the practitioner. Under the heading “Work Arrangements” the report noted that the practitioner “also has an interest in mens’ health, for example hair loss and erectile dysfunction.” Under the heading “Future Plans” this statement was elaborated upon in the following terms:

9. [75]

   As part of the clinical practice interviews in the course of the assessment, four cases were presented to the practitioner. The report of his responses included the following statement:

10. [76]

    This statement by an expert panel was tendered by the practitioner in his case before the Tribunal. There was no suggestion that he sought to disown it; the Tribunal was entitled to rely upon it, as it did.

11. [77]

    That the issue was considered significant by the Tribunal appeared in the course of the hearing in February 2021. An “unidentified male”, who must have been one of the members of the Tribunal (but not the judge) asked Dr Joseph, who was the nominated supervisor of the practitioner’s professional performance: [39]

12. [78]

    In cross-examination the following day (17 February) the practitioner was cross-examined about a passage in the 2019 assessment report relating to PRP injections for hair loss. He acknowledged that “PRP injections” were “platelet-rich plasma injections”, a therapy that was “first suggested might assist in the healing of tendons and things like that”, with which he agreed. [40] The practitioner said that it was used for hair loss, amongst other things and stated: [41]

13. [79]

    Dr Hooper intervened to ask the following question: [43]

14. [80]

    The material was produced and was tendered by counsel for the Commission the following morning. [44] As this material was neither objected to by the practitioner, nor was the subject of submissions by him, it is difficult to understand the basis upon which he could now complain that there was no evidence to support the limited finding made by the Tribunal that it was an “unproven” therapy, his embrace of which demonstrated a lack of comprehension of the ethical requirements necessary for appropriate practice. In addition to the views expressed by the performance assessors in 2019, it may be noted that a survey of randomised control trials discovered on two databases in December 2018 led the authors of one article to observe:

15. [81]

    It is true that his embrace of unproven hair loss treatment was not the subject of complaint, but it was squarely raised by the practitioner himself by tendering the 2019 performance assessment report and he was expressly challenged with respect to the evidence-base for such treatments in his testimony before the Tribunal at Stage 1. Particular (a) cannot be maintained.

16. [82]

    As to particular (b), there was evidence before the Tribunal that the PRP hair loss therapy was unproven. Particular (b) cannot be maintained.

17. [83]

    With respect to particular (c), as noted above, the use to which the Tribunal put this material was identified: despite the warning given him as to a focus on this aspect of men’s health pursuant to the 2019 performance assessment report, and despite the comment of the assessors that the treatment was unproven, the practitioner continued to pursue it as part of his medical practice, and without discussing it with his supervising colleague. These matters formed a rational basis for the Tribunal’s view that his earlier disregard for prescribed uses of somatropin was a continuing problem. The link was rational. Particulars (c) and (d) cannot be maintained.

18. [84]

    It follows that ground 10 must be rejected.

Conclusion

1. [85]

   The grounds of challenge to the orders of the Tribunal have not been made out. Accordingly, the appeal must be dismissed. There was no resistance to the Commission’s submission that costs should follow the event. Accordingly the practitioner must pay the Commission’s costs in this Court.

2. [86]

   There remains a question as to the practitioner’s current status. Because his name has remained on the register of medical practitioners since it was reinstated by the Agency following the interlocutory orders made by this Court on 25 June 2021, it is necessary for the Court to determine what further order should be made to give effect to the orders of the Tribunal. On one view, the interlocutory orders were temporary in their effect and will cease to operate once the appeal is determined. However, the practitioner’s name having been removed from one list and reinstated on the register, it is necessary for the Agency to take positive steps to reverse that situation. If this Court did not have power to make the orders on which the Agency has acted, arguably it does not have power to order the Agency to reverse its earlier action. The better course is to revoke the orders made on 25 June 2021, which would remove any legal basis for the steps then taken by the Agency and would, the Court might expect, lead the Agency to reverse its earlier steps in order to comply with the ruling of the Tribunal.

3. [87]

   There may be an issue as to the manner in which the Tribunal’s orders will now operate. For about four of the five months from the date the Tribunal’s orders took effect (namely 25 May 2021) the practitioner has maintained his registration. On one view, the order precluding the practitioner seeking to reinstate his registration for a period of 12 months will now expire in mid-September 2022, rather than in May 2022. However, that is not an issue which has been addressed in this Court and it is not a matter which this Court can determine. It may be of little practical consequence.

Orders

1. [88]

   The Court should make the following orders:

   1. (1)

      Dismiss the appeal.

   2. (2)

      Revoke the interlocutory orders made on 25 June 2021.

   3. (3)

      Order that the appellant pay the respondent’s costs in this Court.

2. [89]

   MACFARLAN JA: I agree with Basten JA.