Della Bruna v Health Care Complaints Commission

1. [1]

   BELL CJ and KIRK JA: The appellant, Dr Albina Della Bruna (the appellant), prescribed and dispensed human growth hormone (HGH) to ten patients in the period June 2017 to November 2019, doing so “off-label” for reasons said to be connected to fatigue and ageing. The Health Care Complaints Commission (the Commission) brought a complaint in the Occupational Division of the NSW Civil and Administrative Tribunal alleging that this conduct, together with inadequate record keeping, constituted unsatisfactory professional conduct and professional misconduct for the purposes of the Health Practitioner Regulation National Law (NSW) 2009 (the Law). A majority of the Tribunal, writing jointly, concluded that the appellant had engaged in such professional misconduct. The majority was comprised of the two senior members of the Tribunal, who are doctors, along with a general member (the Majority). The presiding principal member of the Tribunal, Ian Coleman SC ADCJ, dissented, and would have found the appellant guilty of unsatisfactory professional conduct only. The remedial “stage 2” hearing is yet to take place.

2. [2]

   The appellant has appealed. She has a right to do so on questions of law and may seek leave to do so on any other grounds: Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), Sch 5, cl 29(4)(b).

3. [3]

   Her amended notice of appeal raised many grounds, but as oral argument was developed particular attention was directed to the following issues:

   1. (1)

      whether the Majority denied the appellant procedural fairness in finding that her objectivity was compromised as a result of financial pressure to turn over her stock of HGH (ground 5(a));

   2. (2)

      whether the Majority erred in rejecting the appellant’s oral evidence regarding her prescribing to and management of patients, and thereby reversed the onus of proof, constructively failed to exercise jurisdiction, denied procedural fairness and gave inadequate reasons (grounds 2, 4, 5(b) and 6, noting those grounds also raised other issues);

   3. (3)

      whether the Majority erred in fact in finding that the appellant did not seek blood tests to measure the IGF-1 levels in any patients to whom she prescribed HGH (ground 7, noting leave to appeal is required for this ground).

4. [4]

   Success on any one of these issues would be sufficient to uphold the appeal. In our view the appellant should succeed on all three. It is unnecessary to address the remainder of the issues and grounds raised. The matter should be remitted to a differently constituted Tribunal.

5. [5]

   One further significant point should also be noted at the outset. Although many grounds of appeal were raised, there was no ground relating to how both the Majority and the presiding member of the Tribunal directed themselves as to the meaning of professional misconduct. Given the importance of the topic, the Tribunal’s approach should not be left unremarked. The Majority (at [356]) followed the presiding member (at [263]) in considering that this issue turned on a standard articulated by Kirby P in Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200. Yet Kirby P’s discussion related to a past statutory scheme involving a different criterion. Under the Law the notion of “professional misconduct” is defined in s 139E. It means, in short, unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration (which can be established by the cumulative effect of more than one instance of unsatisfactory professional conduct). The notion of “unsatisfactory professional conduct” is itself defined in s 139B of the Law in relation to registered health practitioners generally, as added to by s 139C with respect to medical practitioners. In this matter the Commission had relied on two variants of unsatisfactory professional conduct, set out in s 139B(1)(a) and (l):

6. [6]

   Neither set of reasons in the Tribunal referred to, let alone considered, the criterion of professional misconduct set out in s 139E in dealing with the Commission’s complaint. The section itself was only mentioned once, in passing, in the presiding member’s reasons at [2].

7. [7]

   This Court has previously warned about relying on past case law relating to differently expressed statutory standards in considering whether medical practitioners have engaged in professional misconduct under the Law: Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [59]-[75] (Payne JA), note also at [4]-[20] (Basten JA), and [23] (Leeming JA agreeing with both). It appears the warning was not heeded in this matter. It is axiomatic that in considering whether or not a medical practitioner has engaged in professional misconduct the Tribunal must identify and apply the correct test. The Tribunal failed to do so here.

8. [8]

   The background to the matter is set out in the reasons of Adamson JA at [116]-[171]. We will address the three issues identified above in turn. Before doing so, it is appropriate to say something as to how reasons written by non-lawyers should be read and reviewed when challenged by way of appeal or judicial review.

Reviewing reasons

1. [9]

   When hearing complaints against medical practitioners the Tribunal is required to be constituted by a member of the Occupational Division of the Tribunal who is a senior judicial officer (as defined in s 165), two health practitioners selected for appointment by the relevant Council who are registered in the same health profession as the practitioner in question, and one lay person: Law, s 165B(2); CAT Act, Sch 5, cll 12-13. If the members are evenly divided on a decision (other than a decision of law) then the opinion of the presiding, legal member prevails: CAT Act, s 57(3)(a). Otherwise, for such non-legal decisions, the opinion of the majority prevails: CAT Act, s 57(1). For the Tribunal to be divided in opinion, and for the presiding judicial member to be in dissent, is relatively unusual in disciplinary matters. However, it is appropriate and important that all members diligently come to their own views.

2. [10]

   It is also appropriate that when a court comes to review reasons given by members of the Tribunal who are not lawyers, that characteristic is borne in mind. In its submissions the Commission quoted a statement that a specialist tribunal “consisting of persons inexperienced in the formulation and use of legal language ought not be expected to craft reasons for judgment in the style of ‘a Brennan’ or display the verve and reasoning power of ‘a Denning’”: Seablest Pty Ltd v Smith (1996) 91 LGERA 1 at 4. So much may be accepted. Compressed reasoning, unusual structuring, infelicities of language, inaccurate use of legal phrases, or such like may simply reflect the nature, training and experience of the author.

3. [11]

   Nevertheless, medical and lay members of the Tribunal are still required to give legally adequate reasons. Section 165M of the Law requires the Tribunal to “give a written statement of the decision”, which statement must set out any findings on material questions of fact, refer to any evidence or other material on which the findings were based, and give the reasons for the decision. Failure to give adequate reasons may suffice to uphold an appeal in such matters: eg Ghosh v Health Care Complaints Commission (2020) 104 NSWLR 107; [2020] NSWCA 353 at [128]-[151]. The reasons must be sufficient to enable a court to see whether the opinion does or does not involve any error of law: note analogously Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [54]; New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [71]-[73]. Given the serious nature of the issues and the potential consequences, there may be little difference in substance from the duty of a court to give reasons: Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [55].

4. [12]

   The Commission sought to emphasise the oft-cited approval by a plurality of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 of statements by the Full Court of the Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 and McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616. The plurality in the High Court said (at 272, citations omitted):

5. [13]

   Justice Kirby made similar points in Liang at 291, also citing Pozzolanic. As his Honour said there: “The reasons under challenge must be read as a whole. They must be considered fairly”. The plurality’s judgment in Liang is consistent with taking that approach (see eg at 280).

6. [14]

   In Pozzolanic the statement (at 287) about avoiding an “eye keenly attuned to the perception of error” was itself supported by a reference to an earlier judgment of Lockhart J in Politis v Commissioner of Taxation (Cth) (1988) 16 ALD 707 at 708. It is worth noting what his Honour then went on to say in that case after having deployed that phrase (ibid):

7. [15]

   Consistently with approaching the task in a sensible and balanced way, a beneficial approach to reasons does not demand that any ambiguity be resolved in favour of the decision-maker: see SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26] (Stone J); approved eg Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 at [190]; Allianz Australia Insurance Ltd v Rutland [2015] NSWCA 328; (2015) 73 MVR 211 at [26]; Minister for Home Affairs v Ogawa (2019) 269 FCR 536; [2019] FCAFC 98 at [116].

8. [16]

   The Court’s review of the reasons of a decision-maker should not proceed in a manner inclined to finding error. But that does not mean the Court must strive to read the reasons in such a way as to avoid the conclusion of error. For example, it is not for the Court to fill gaps in reasons by speculating about what further unarticulated considerations, if any, lie behind what the decision-maker said. The Court’s duty is to read the reasons fairly and as a whole, making due allowance (where relevant) for the fact that the authors are not lawyers accustomed to writing in a legal manner.

Procedural fairness and financial incentives

1. [17]

   The Majority’s reasons were written as a response to the presiding member’s reasons. On the issue at hand, relevantly, the presiding member said this:

2. [18]

   At [255] the presiding member summarised his key findings in a list of 12 points, which included the following:

3. [19]

   In response, the Majority’s reasons included the following:

4. [20]

   The Majority responded at [355] to the presiding member’s summary of findings at [255], saying:

5. [21]

   The nature of the concern expressed by the Majority at [313] is somewhat difficult to understand. As the presiding member alluded to, by the end of the hearing below it did not seem to be disputed that the appellant was dispensing the HGH at cost price, although that had not been the Commission’s understanding at the commencement of the case. The Majority seemed to imply that there was some pressure on the appellant to dispose of a large stockpile, perhaps because it had a limited shelf life, or because it needed to be purchased by her in some large amount. But no such evidence was identified. And it was not how the Commission put its case. The Majority’s view, as espoused in [313], that it was “plausible that this expensive level of ongoing inventory may have impacted her objectivity” was speculative. This speculation was never put to the appellant and was translated by the Majority into a positive conclusion (“thereby influencing her objectivity”) in [355(xi)].

6. [22]

   In its closing written submissions the Commission had noted that the appellant spent around $29,000 per month purchasing HGH (it seems that the Tribunal’s references to $25,000 were mistaken). It said it could be inferred that for her “to have spent that much per month, she saw benefit in this aspect to her practice”; this “would have affected her objectivity and judgment when determining whether it was clinically appropriate for her patient”; and that the appellant gained increased patronage from direct dispensing.

7. [23]

   The appellant’s complaint is that the Majority denied her procedural fairness in finding that her objectivity was compromised as a result of financial pressure to turn over her stock of HGH when that was not part of any particularised complaint and had not been put to her. Senior counsel appearing for the appellant, Ms Mathur SC, acknowledged that the issue had been the subject of closing submissions in those terms before the Tribunal by both sides, and no objection on procedural fairness grounds had been made to the issue having then been raised. However, she effectively conceded this was an error on the part of the appellant’s legal team and the point should have been taken. As explained by Adamson JA below (at [161]), an unfortunate feature of this matter was that oral closing submissions occurred about a year after the evidence had been completed, with written submissions being supplied shortly before that final hearing. Ms Mathur argued that any lack of fairness was not cured by the chance to make submissions below, because the appellant herself should have been given the chance to deal with it in evidence. Any error in this respect by the appellant’s legal team in submissions below should not be held against the appellant. Senior counsel appearing for the Commission in this Court, Ms Heger SC, fairly accepted as much.

8. [24]

   The starting point of the procedural fairness analysis must be the Amended Complaint which was before the Tribunal. Complaint One of the document relevantly alleged that the appellant was guilty of unsatisfactory professional conduct including because she “prescribed and inappropriately dispensed” HGH to Patients A-J on dates and in quantities particularised. Complaint Two related to inadequate record keeping. Complaint Three alleged that the conduct of the appellant taken as a whole constituted professional misconduct.

9. [25]

   In Complaint One, for each of patients A-I further particulars were then provided of when the appellant “inappropriately prescribed” identified drugs, and it was alleged for each that she “failed to appropriately manage the prescribing of the drugs”, where they were prescribed off-label. These particulars said nothing further as to how or why she had “inappropriately dispensed” the drugs. A fair reading of the relevant portions of the Amended Complaint in context is that the dispensing of HGH was inappropriate for the same reasons as its prescription was. For Patient J, similar allegations were made, along with an additional allegation with respect to prescription of other drugs.

10. [26]

    Ms Heger accepted that “there’s nothing in this document that expressly says she had a financial incentive and that compromised her objectivity”. Thus the allegation was not made in the place where it should have been.

11. [27]

    The appellant filed a “Reply” to the Amended Complaint dated 19 September 2022 which addressed criticism of her directly dispensing HGH. Her reasons included that direct dispensing “is convenient for patients and it protects their privacy as well”. Naturally enough, given that the issue had not been raised, the appellant did not address any issue of claimed financial incentive or suggested lack of objectivity.

12. [28]

    The appellant’s solicitor requested further particulars of the Amended Complaint in a letter sent on 12 September 2022. The Commission indicated in its response on 21 September 2022 (provided after the Reply had been filed) that a particular had been added “regarding the dispensing of Somatropin directly to the patients”, which had occurred after an earlier hearing before the presiding member. The letter included a table responding to specific questions asked by the appellant’s solicitor. The table had three columns, without headings. The first column of the table listed the questions; the second column appeared to provide the answer to the questions; the third column appeared to indicate what evidence, standards or the like were relied upon in support of the allegation at issue.

13. [29]

    In response to the relevant query, being “what is meant by inappropriate dispensing”, the Commission said the following in the second column:

14. [30]

    This answer to the question did not suggest that the appellant had some financial or stockpile-related incentive relating to dispensing HGH which may have compromised her objectivity. Given that the Commission had not identified this issue either in its Amended Complaint or in its answer to a specific question seeking particulars, the appellant could reasonably have concluded that no such issue was being raised. Thus the presiding member made the point that the suggestion the appellant had in some way financially benefitted was “not … part of a particular of any complaint against her” (at [111]).

15. [31]

    The Commission in this Court did not rely upon its actual answer to the direct question asked of it in the request for particulars. Rather, it said that the allegation was identified by way of the evidence and materials referred to in the third column of the table, as follows:

16. [32]

    The Commission did not seek to rely in this Court on the professional standards and guidelines identified. Nor were we taken to the first report of Dr Kertesz in this regard. In Dr Kertesz’s supplementary report he relevantly said this:

17. [33]

    The Commission sought to emphasise the words “the attraction of a fee for the medication delivered to the patient”. Yet the obvious meaning of what Dr Kertesz was referring to was that the appellant would profit by receipt of the fee for the act of providing the HGH. That was a natural assumption for him to make when preparing his reports. In fact it was wrong; the appellant was dispensing the drug at cost price. Senior counsel for the Commission submitted that there were a “number of different ways you might read this”, and it “could” be understood to mean that the appellant “has a consultation, it’s prescribed and given to the patient in the context of that consultation, so we say that language is broad enough to encompass the consultation fee itself”. We regard that reading as contrary to the ordinary connotation of the words used, understood in context.

18. [34]

    The other material the Commission had identified was at p 7 of Professor Carter’s report, where this was said (emphasis added):

19. [35]

    The words “aside from possible financial considerations” were struck out of the report by the presiding member at a preliminary hearing on 18 October 2022 as being “gratuitous”, which can be understood in context as also meaning speculative. Senior counsel for the Commission noted that those words had not been struck out at the time its response was sent (on 21 September 2022) and described those redacted words in this Court as “a suggestion, and I accept a fairly vague one, that she might have had some financial motivation for prescribing these drugs”. The words were, indeed, vague at best.

20. [36]

    The Court was also taken to some cross-examination of the appellant by counsel then appearing for the Commission. The relevance of cross-examination to the current dispute is open to argument. Although the questions were not objected to, the nature of the case to be met should have been articulated prior to the appellant giving evidence. In any event, we do not consider the cross-examination advances the Commission’s argument. It was put to her that being able to obtain the HGH at cost price would have been an attraction to patients. But it was not suggested to her, let alone squarely, that she had a financial incentive to prescribe the drugs, that she had some need to run down a stockpile of drugs, or that either of those imperatives had compromised her objectivity in deciding what to prescribe.

21. [37]

    It is notable that the culmination of the cross-examination on this topic constituted suggesting to the appellant that her explanations for direct dispensing (most notably being patient embarrassment) was not true, and rather that “the reason that you sought to directly dispense somatropin was to reduce the risk of oversight or investigation about it”. It is telling that senior counsel now appearing for the Commission said of this denouement, “[t]o that extent clearly her explanation for the direct dispensing is being put in issue” (emphasis added). And the extent her explanation was there being put in issue does not encompass financial or stockpile related incentives.

22. [38]

    The Commission then sought to make something of the fact that the General Member asked some questions of the appellant, in the course of which the member referred to p 20 of Dr Kertesz’s supplementary report. The member’s questions about that page dealt with the distinct issue of safety guidelines. Any suggestion that procedural fairness was provided by some questioning by a member about a different topic, which questioning happened to touch on a page of evidence that the Commission now relies on, where the questions did not address the topic at hand, is as surprising as it is devoid of merit.

23. [39]

    Drawing these matters together, part of the Majority’s reasoning was that the appellant had some financial or stockpile-related incentive to maintain turnover of her stock of HGH, which incentive may have impacted or did impact her objectivity in deciding to prescribe and dispense that drug. This was not alleged as part of the Commission’s case where it should have been, being the Amended Complaint. It was not stated in terms in the letter providing further particulars. The best that the Commission could point to was parts of two reports which were referred to in that letter. The natural reading of part of one sentence that the Commission relied upon in the first report (the supplementary report of Dr Kertesz) was not to the point. As for the report of Professor Carter, the relevant five words relied on were in fact struck out of the report prior to the final hearing as being gratuitous and speculative, and those words in any case did not actually articulate the allegation at issue. At best those words made some vague and speculative wave towards there being some financial motivation of an unstated kind.

24. [40]

    It has been suggested that the fact that the appellant’s patients had a financial motive to consult her to obtain HGH at cost price necessarily meant the appellant had a financial benefit by way of having a competitive advantage as a doctor. Even if that implied step is accepted, a further significant step is then required to reach the serious finding made by the Majority that the appellant’s objectivity as a doctor in prescribing HGH was compromised by her own financial self-interest. Neither of these two steps was articulated by the Commission.

25. [41]

    It has also been suggested that it was open to the Tribunal to consider that the practitioner’s business model took account of the holding costs of $29,000 worth of Somatropin per month. The Majority’s reasons do not suggest that it reached any such conclusion. Its reference at [355(xi)] to “[p]aying for and storing such a valuable inventory” as a reason for creating turnover does not expressly refer to the costs of storage; the appellant was not asked in cross-examination about the costs of storage; and this was not mentioned as part of the Commission’s case in its closing submissions to the Tribunal. Consistently with what is said above at [12]-[16] about reading the decision-maker’s reasons fairly and as a whole, it is not for the Court to speculate about what further unarticulated reasons, if any, lie behind what the Majority said.

26. [42]

    A foundational requirement of procedural fairness is that a person liable to be adversely affected by a decision be fairly apprised of the case against them and given a reasonable opportunity to meet it: see eg Johnson v Miller (1937) 59 CLR 467 at 489; [1937] HCA 77; Kanda v Government of Malaya [1962] AC 322 at 337; Commissioner for ACT Revenue v Alphaone (1994) 49 FCR 576 at 591. The person should not be left to guess, nor required to box at vague shadows. It would not have been difficult for the Commission to articulate the point. If it intended to rely on the type of serious finding made by the Majority then it could and should have been articulated in clear terms in the Amended Complaint or, failing that, at least in its answer to the relevant question in the request for further particulars. Neither was done. The Commission’s strained reading of two part-sentences in two expert reports does not meet the required standard.

27. [43]

    The Court may readily infer that the appellant may have been able to give evidence in response, such that the failure to comply was a material error: note LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at [15]. The Commission argued that the finding in question was “peripheral to the majority’s ultimate conclusion”, occupying only a paragraph of reasoning. Yet the impugned part of the decision appeared to have constituted one significant step in the Majority’s reasoning process, presaged by its own heading. So much is confirmed by the fact that the Majority returned to the topic in their summary paragraph at [355], responding point by point to the presiding member’s summary of findings. The finding made by the Majority at [313] of its reasons breached the requirements of procedural fairness in a material manner.

The rejection of the appellant’s evidence

1. [44]

   As noted, the Commission’s second complaint in the proceedings below was that the appellant was guilty of unsatisfactory professional conduct by failing to make and keep adequate records in relation to Patients A to J. The appellant admitted the allegation, without necessarily admitting all of the particulars. No issue arises about that complaint on this appeal. What does arise is an issue about the view the Majority took of the appellant’s oral evidence with respect to her treatment of the patients, in light of the admitted inadequacy of her records.

2. [45]

   The Majority said as follows:

3. [46]

   In its response at [355] to the presiding member’s summary of findings, the Majority relevantly said:

4. [47]

   The point that the presiding member had made at [255(vi)], to which the latter sub-paragraph in the Majority’s reasons responded, is worth noting:

5. [48]

   The presiding member was correct to indicate that the appellant gave detailed oral evidence with respect to what she did in the course of prescribing and managing off-label medications for the ten patients. In so doing it is apparent that she was referring to her records then seeking to add further information from her memory.

6. [49]

   The appellant made this submission:

7. [50]

   We agree.

8. [51]

   Senior counsel for the Commission sought to defend the reasoning at [344] in these terms:

9. [52]

   This attempted explanation prompts the obvious question: why did the Majority find it to be an unreliable account? It was of course open to the Majority to reject the extensive evidence of the appellant, in whole or in part, as being unreliable or not credible. But to do so requires reasons. Giving such reasons is not mere verbiage; it is a critical step in explaining a conclusion.

10. [53]

    For example, the Majority might have referred to any inconsistencies or contradictions in her evidence; identified some examples of what she said that was unreliable; given instances where her claimed memory was shown to be contrary to something in a record; or expressed the view that the appellant’s demeanour whilst giving evidence cast doubt over what she said. It is conceivable that the Majority considered that her evidence was so replete with guesses and admissions as to lack of recollection as to be completely unreliable. Yet the Majority made no such suggestion. To infer that any one of these possible explanations was the Majority’s real reason, beyond the reasoning they actually expressed, is speculative.

11. [54]

    Consistently with what has been explained above at [12]-[16], it is not the role of a Court on appeal or judicial review to assume that there must have been some good reason for any conclusion reached and, on that assumption, then to conclude that the failure to give a rational reason manifests no error. Doing so is circular. Where a judge is “bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result”: Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 at [130] (Hayne J). This principle has been applied to administrative decision-makers who are obliged to give reasons: D’Amore v Independent Commission Against Corruption [2013] NSWCA 187; (2013) 303 ALR 242 at [101]-[105] per Beazley P, Bathurst CJ agreeing at [1]. It applies here.

12. [55]

    Having noted at [342] that the appellant’s oral evidence went beyond what was contained in the patient records, the only reasons the Majority gave for its wholesale rejection of the appellant’s evidence on point were as follows:

    1. (1)

       Section 10.5 of the Medical Board’s Code of Conduct states that it is essential for the continuing good care of patients to keep accurate up-to-date and legible records (see [343] and [355(vi)]).

    2. (2)

       Oral evidence “pertaining to specific consultations, some three or four years later, cannot replace a patient record which has been contemporaneously recorded and accordingly we reject the practitioner’s oral evidence on these points” (at [344]).

    3. (3)

       “Ex post facto assertions in respect of patient consultations that occurred some four years prior are inherently unreliable” (at [355(vi)]).

13. [56]

    At [355(iv)] the Majority also said that “[o]ral evidence, some four years after a consultation with a patient, from the practitioner pertaining to specific consultations in lieu of entries in the patient record are rejected by the Tribunal”. That statement is a conclusion, not a reason.

14. [57]

    As to the first and second reasons as just identified, it is clear that the appellant was required to keep good records, and she conceded she did not do so as well as she should have done by admitting to Complaint Two. But the normative requirement that she keep good records does nothing to establish that her memory is unreliable. It is irrational and unreasonable to suggest otherwise. Usually contemporaneous records will be the most reliable source of evidence. That being said records can be erroneous, in which case the better evidence may indeed be a subsequent explanation. Even leaving such cases aside, the fact that records are generally better evidence does not establish that subsequent explanations are or no value. That is especially true insofar as the subsequent evidence expands upon what is contained in the record. It is a non sequitur to suggest otherwise.

15. [58]

    As to the third reason, the limits of human memory are well known and much discussed: see, eg, Watson v Foxman (1995) 49 NSWLR 315 at 318-19; Willmot v Queensland [2024] HCA 42; (2024) 98 ALJR 1407 at [30]. In some cases that leads courts or tribunals to reject the testimony of witnesses. Yet judges, juries and tribunals accept oral evidence as to past events – potentially occurring decades ago – every day of the week. Moreover, memories refreshed from contemporaneous notes are liable to be more accurate than those unsupported by such material.

16. [59]

    As the Commission itself submitted, “her admission of inadequate record-keeping … made it all but certain that her oral recollections would come under close scrutiny”. In that context, if her evidence was to be rejected it was critical to explain why that was done, in rational terms. This the Majority failed to do.

17. [60]

    The reasoning at [342]-[344] and [355(vi)] must be accepted as the basis for the Majority’s rejection of the oral evidence of the appellant. There is no other reasoning. The reasoning in those paragraphs is not only entirely generic, it is irrational. Accepting that reasons expressed in uncomplicated language mean what they say, read fairly in context, cannot be dismissed as pedantry. Indeed, a contextual reading reinforces that the Majority meant what they said. At [300] the Majority quoted some evidence of Professor Carter which criticised the appellant both with respect to her record-taking and treatment. The Majority then said:

18. [61]

    This statement illustrates much the same reasoning process: if something was not recorded in the notes, it did not occur. A similar point seems to have been made at the end of [331].

19. [62]

    The Commission argued that the Majority’s reasoning at [344] and [355(vi)] was not directed to the appellant’s evidence as a whole but rather to her evidence about particular consultations. It can be accepted that the Majority was dismissing the relevance of all of the appellant’s extensive oral evidence about all of her numerous consultations with all of her ten patients over a period exceeding two years. That was no minor step. The Commission’s point does nothing to answer the criticisms made of the reasoning.

20. [63]

    The Majority’s approach involved error that can be expressed in various ways. Reversal of onus of proof (ground 2) might be a way in which the error could be expressed. Regardless, it was certainly a legal error by failure to give adequate, intelligible or logical reasons (raised by ground 6). It was also a constructive failure to exercise jurisdiction insofar as it involved a failure to grapple with a substantial and clearly articulated aspect of the appellant’s case (raised by ground 4). That type of error can also be expressed in terms of procedural fairness (as raised by ground 5(b)): Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24].

The claimed error of fact relating to testing

1. [64]

   Ground 7 of the amended notice of appeal complained that the majority erred in fact in finding that:

2. [65]

   She contended that the purported factual errors were expressed in the following passages of the Majority’s reasons:

3. [66]

   The appellant argued that the Majority erred in fact at [297], [328], [331] and [355] because the evidence before the Tribunal highlighted that the appellant did conduct IGF-1 tests for patients who were prescribed HGH and that “ongoing monitoring at least six months with IGF-1, lipids, glucose, blood pressure, weight and body mass index” were not considerations wholly missing (“all are missing from the practitioner’s patient records”) as asserted at [331].

4. [67]

   Senior counsel for the Commission, although opposing the grant of leave, accepted that if the Court acceded to the appellant’s complaint that, on their fair and proper reading, these paragraphs disclosed that the Majority proceeded on an incorrect factual basis and these factual errors were material, there was nothing that she could say against leave to appeal being granted. So much was consistent with what Griffiths AJA recently observed in Kavieris v Health Care Complaints Commission [2025] NSWSC 20 at [116]:

5. [68]

   For the reasons that follow, we are comfortably satisfied that the Majority proceeded on a seriously incorrect factual basis as to the testing and monitoring that was undertaken by the appellant of Patients A-J, that this error was material, that leave to appeal should be granted and that ground 7 of the appeal should be upheld.

6. [69]

   The natural reading of the four paragraphs set out at [65] above support the appellant’s contention. Senior counsel for the Commission conceded that the language employed by the Majority was “imperfect”, argued that it amounted to the Majority simply saying, not that IGF-1 tests had not been undertaken, but that the appellant had not evaluated blood tests that had been undertaken. She continued:

7. [70]

   The Commission’s submission and the interpretation sought to be placed on the Majority’s language in [297] simply cannot be reconciled with what appears shortly after in the Majority’s reasons at [328], namely that “the practitioner has not sought blood tests to measure the IGF1 for any of the patients”. Moreover, the Majority in [328] implicitly equated the ordering of blood tests as at least part of what was “appropriate serological monitoring”. Further, as shall be shown, there was evidence of subsequent assessment of various tests that had been ordered.

8. [71]

   Ms Heger was constrained to make the submission she did because the contemporaneous clinical records made by the appellant and which were before the Tribunal highlighted that the appellant had in fact conducted IGF-1 testing for patients A-J. Specifically, the contemporaneous clinical records showed that the appellant conducted IGF-1 testing, and recorded the test results, including for:

   1. (1)

      Patient A on 18 March 2019;

   2. (2)

      Patient B on 5 February 2019;

   3. (3)

      Patient C on 11 February 2019, recording the results of a pathology report dated 22 January 2019;

   4. (4)

      Patient D on 26 July 2019, recording the results of a pathology report dated in the same month, and a further IGF-1 result entered in the clinical records on 16 October 2019;

   5. (5)

      Patient E on 9 October 2016, 17 January 2018 and 16 October 2019;

   6. (6)

      Patient F on 17 October 2017, 24 October 2018 and 19 October 2019;

   7. (7)

      Patient G on 12 April 2016, recording the results of a pathology report dated 23 February 2016 and 1 July 2019;

   8. (8)

      Patient H on 18 July 2017;

   9. (9)

      Patient I on 27 June 2018; and

   10. (10)

       Patient J, a pathology report dated 17 April 2018 highlighted that the patient’s IGF-1 levels had been tested.

9. [72]

   The appellant noted that Dr Kertesz’s first report expressly acknowledged that the appellant conducted IGF-1 tests in relation to patients A, B, C, D, E, G and I. As noted above, IGF-1 tests were also recorded by the appellant for Patient F, and conducted for Patient J. The appellant explained in cross-examination that she conducted IGF-1 tests:

10. [73]

    During cross-examination, the appellant noted specific IGF-1 scores for her patients, such as for Patient E:

11. [74]

    The appellant’s evidence was corroborated by her clinical records, as noted above. The Court was asked to infer that NAD was shorthand for “no adverse developments”, and this was not contested by the Commission. Implicit in the expression was the monitoring by the appellant of her patients. References to “NAD” were made throughout the appellant’s clinical records for patients A-J:

12. [75]

    The Majority’s erroneous finding that no IGF-1 testing was sought or occurred was material to its reasoning process. Thus, at [328], immediately following its erroneous statement that “in the ten patient records produced in relation to this matter, the practitioner has not sought blood tests to measure the IGF1 for any of the patients”, the continued prescription of growth hormones without monitoring for IGF-1 was described as “serious negligence”.

13. [76]

    The materiality of the factual errors in the Majority’s reasoning may also be seen in its emphatic statement at [331] with regard to monitoring of IGF-1, lipids, glucose, blood pressure, weight and body mass index. The Majority said emphatically and unambiguously that “[a]ll of these considerations are missing from the practitioner’s patient records”. This sweeping and damning statement was fundamentally erroneous. We have already noted the often multiple references to IGF-1 tests in the patient records. But there are even more and regular entries for the measurement of blood pressure (BP), height and weight, for example. Patient A’s records, for example, record separate blood test results on three occasions, blood pressure results on six occasions as well as weight being regularly tested. Such measurements occurred even more often for many of the other sample patients, on regular occasions. There are also entries in these notes for testing of lipids and glucose (see patients B, C, D, E).

14. [77]

    The appellant’s clinical notes routinely preface the recording of blood pressure, pulse rates and weight with the letters “O/E”, shorthand for Observation/Examination. Some of these entries contain added commentary such as “recent bloods” (patient A), “due blood test” (patient B), “sent for blood tests” (patient C), “looks well” (patient D), “review past bloods”, “looks the same” and “Await blood results” (patient E), and “request bloods” (patient F).

15. [78]

    By way of example, in relation to Patient A, the appellant made the following observations in her clinical records:

16. [79]

    By way of further example, in relation to Patient B, the appellant made the following observations in her clinical records:

17. [80]

    The appellant’s clinical records therefore contradict the Majority’s statement in [328] that IGF-1, blood pressure and weight were “missing from the practitioner’s records”. The appellant also requested pathology reports for Patient B, which recorded IGF-1, lipids, glucose and insulin levels, on 22 January 2019.

18. [81]

    The materiality of the Majority’s conclusions with regard to the [mistaken] absence of monitoring may also be seen from [281] where it was said that the “paramount concern” was to protect the safety of the public from “the potential for harm from very serious side effects caused by the prescribing of growth hormones… without adequate serological monitoring for side effects”.

19. [82]

    No convincing answer was given to what was conceded by the Commission to be the “legitimate question” asked by the Chief Justice as to “[w]hy would you order the tests unless you were going to assess them?”: see [69] above. The Commission’s position seemed to amount to the proposition that the ordering of pathology tests and the noting of particular results in a patient’s clinical notes was a wholly mechanical act amounting to a solemn farce. Why would tests be ordered in the first place? Why would the practitioner await the results of blood tests if she did not intend to monitor the patients? Why would the results be regularly recorded and some at least of the notes annotated with shorthand expressions such as NAD (“no adverse development”)? Why would weight and blood pressure measurements be routinely taken?

20. [83]

    The Majority’s reasoning and conclusions with regard to an absence of monitoring by the appellant, and its significance for their ultimate conclusions, was vitiated by serious misconceptions as to what was done and recorded in the appellant’s clinical notes, examples of which have been referred to above. True it is that these records were not as full as they should have been, and the appellant conceded as much. They were sufficiently full, however, to negate the conclusions of the Majority that the IGF-1 tests had not even been sought and that all of the other ongoing monitoring that Associate Professor Holmes-Walker had indicated was missing from the patients’ records. The evidence was quite to the contrary. Although it is not necessary to speculate how such a fundamental error could have occurred, it may be attributable in part to the long delay between the hearing of the evidence and the final submissions and then to what may be inferred to be the long delay between that event and the formulation of the Majority’s reasons which responded to those of the presiding member.

21. [84]

    We are mindful that Adamson JA has accepted the Commission’s submission that “such [IGF-1] tests as were done were not done for the purpose of determining whether any of the patients had an excess of growth hormone” (emphasis in original). Her Honour states at [296]:

22. [85]

    With respect to her Honour, we cannot agree. This is so for a number of reasons.

23. [86]

    First, the statement – “[t]he Tribunal can be taken to be aware that the appellant conducted IGF-1 tests from time to time on her patients: it did not find to the contrary” – cannot be reconciled with the Majority’s unambiguous statement at [328] that “the practitioner has not sought blood tests to measure the IGF-1 for any of the patients” (our emphasis). The Majority’s factual error was confirmed by its subsequent statement at the conclusion of [331] about the considerations said “all” to be “missing from the practitioner’s patient records”.

24. [87]

    Second, the Majority did not qualify its statement in [297] by reference to considerations of “time (before she prescribed any Somatropin)”, contrary to Adamson JA’s suggestion. Nothing in [297] supports her Honour’s statement that “[t]he Tribunal was careful in its reasons to qualify its finding that the appellant failed to order tests …. by time (before she prescribed any Somatropin)”. Indeed, the context is to the contrary: the Majority referred to Professor Carter’s concern to monitor for medical conditions “exacerbated by excess growth hormone such as somatropin”: [296]. The “identification of side effects” could only occur by testing after administration of the drug to particular patients. This was consistent with how the Commission puts its case on appeal. Thus Ms Heger submitted:

25. [88]

    Third, her Honour says:

26. [89]

    In response we would make three points. First, her Honour located the admission to which she referred as having been made by the appellant in her Reply to the Commission’s initial (unamended) Complaint, dealing with Patient A:

27. [90]

    This passage in terms is directed to testing prior to prescription of Somatropin. It would only assume significance if that is what was being addressed in [297]. For the reasons given above, it was not.

28. [91]

    Second, the Tribunal did not “accept” any such admission (even if it is correct to refer to it as an admission: cf Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 86; [1990] HCA 31). The Majority did not even refer to this aspect of the appellant’s Reply in its reasons nor was it relied upon in the Commission’s oral or written submissions below.

29. [92]

    Third, what Adamson JA has referred to as the appellant’s admission contained in her Reply to the Commission’s Complaint was not referred to nor relied upon by the Commission in its submissions before this Court. The appellant was not given an opportunity to be heard in relation to the significance which it appears to assume in her Honour’s reasons.

30. [93]

    Finally, we note that in relation to ground 7(b), her Honour appears implicitly to accept that the Majority’s erroneous statement that “All of these considerations are missing from the practitioner’s patient records” was not correct, and that “the appellant conducted some testing of her patients”: see [298] below. In rejecting this ground of appeal, however, Adamson JA referred to evidence of Associate Professor Holmes-Walker as to the frequency with which such tests should occur, suggesting that such testing as the appellant did undertake did not meet what was required. Thus, her Honour states that:

31. [94]

    Later her Honour referred to six months as the “stipulated” period. Yet the expert was not so prescriptive as to time. As Ms Heger acknowledged in the course of submissions:

32. [95]

    Later in her submissions she was more precise:

33. [96]

    This was consistent with Associate Professor Holmes-Walker’s evidence in cross-examination:

34. [97]

    In any event, while not all of the marker tests may have been undertaken at six monthly intervals, many were undertaken more regularly and certainly within 12 month periods.

35. [98]

    The Majority proceeded, however, on the basis that there was no monitoring whatsoever: “all of these considerations are missing from the practitioner’s patient records”. This is the gravamen of the appellant’s complaint. There was no analysis by reference to the evidence as to the adequacy of the monitoring and testing that was in fact done. This would have had to have occurred in order for the Tribunal to form a view as to whether the practitioner’s conduct not only fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience but did so to a significant degree.

Conclusion and orders

1. [99]

   The appeal must be upheld. The orders of the Tribunal which give effect to the Majority’s conclusion must be set aside. That will mean the Commission’s Amended Complaint remains undetermined.

2. [100]

   The appellant sought that remittal be to a differently constituted Tribunal, save that it sought that the presiding member remain. Given that the Majority, at least on one view, has made credit and reliability findings in relation to the appellant, it is appropriate that the Tribunal be differently constituted on reconsideration. However, the appellant cannot pick and choose who will sit on that panel. There should be no exception for the presiding member.

3. [101]

   It is open to the Court to make orders that the Tribunal’s reconsideration take place “either with or without further evidence”: CAT Act, Sch 5, cl 29(8)(d). We will leave the issue of how to proceed in the hands of the parties and the Tribunal. It would be open for the evidence received in the Tribunal’s hearing, including transcript of examination and cross-examination, to be tendered before the reconstituted Tribunal.

4. [102]

   As for costs of the appeal, if the appellant had succeeded only on the procedural fairness issue then there would be something to be said for each side bearing its own costs, given that the point complained of could and should have been raised below in closing submissions. However, the appellant has succeeded on two further, independent grounds. In that context costs should follow the event.

5. [103]

   The orders of the Court will be as follows:

   1. (1)

      Grant leave to appeal in relation to ground 7.

   2. (2)

      Appeal allowed.

   3. (3)

      The orders of the Tribunal made on 24 October 2024 are set aside.

   4. (4)

      The matter is remitted to the Tribunal, to be differently constituted.

   5. (5)

      The respondent is to pay the appellant’s costs of the appeal.

6. [104]

   ADAMSON JA: Dr Albina Della Bruna (the appellant) appeals and seeks leave to appeal against a decision of the NSW Civil and Administrative Tribunal (the Tribunal) in its Occupational Division that she was guilty of professional misconduct within the meaning of that term in s 139E(b) of the Health Practitioner Regulation National Law (NSW) 2009 (the Law). All references to legislation in these reasons are to the Law unless otherwise indicated. References to the reasons of the Tribunal (being the joint reasons of the majority, which are taken to be the reasons of the Tribunal) and the reasons of the Principal Member (who was in the minority) will be indicated in my reasons by paragraph numbers in square brackets.

Introduction

1. [105]

   The definitions of unsatisfactory professional conduct and professional misconduct were central to the proceedings before the Tribunal and are central to this appeal. These terms are relevantly defined by the Law as follows.

2. [106]

   Section 139B(1) defines unsatisfactory professional conduct of a registered health practitioner as including:

3. [107]

   Section 139E defines professional misconduct of a registered health practitioner as meaning:

4. [108]

   In an amended complaint filed on 16 August 2022, the respondent, the Office of the Health Care Complaints Commission (the Commission), alleged three complaints against the appellant:

   1. (1)

      she was guilty of unsatisfactory professional conduct under s 139B(1)(a) of the Law in that she had:

   2. (2)

      that she was guilty of unsatisfactory professional misconduct under s 139B(1)(b) of the Law as she had contravened a provision of the Health Practitioner Regulation (New South Wales) Regulation 2016 (NSW) (the Regulation) in that she had failed to make and keep adequate records in relation to Patients A-J, including creating records such that other practitioners would find it difficult to continue the management of the patients and which were illegible and difficult to decipher (the second complaint); and

   3. (3)

      she was guilty of professional misconduct under s 139E of the Law either because the first two complaints, when considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of her registration or because her conduct as alleged was of such a nature (the third complaint).

5. [109]

   The Tribunal was constituted by Principal Member Coleman SC ADCJ (the Principal Member), Drs Badam and Newberry, both Senior Members, and General Member Ms Lovrovich (the General Member). Because the Tribunal was constituted by more than one member, it was open to the members who constituted the Tribunal to be divided in opinion, with the consequence that the opinion of the majority is taken to be the decision of the Tribunal: s 57 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).

6. [110]

   The Tribunal, by majority (the Senior Members and the General Member), found that the three complaints had been made out.

7. [111]

   The Principal Member, who constituted the minority, considered that the appellant was guilty only of unsatisfactory professional conduct under the second complaint, which the appellant had admitted. Although the Principal Member found that the appellant’s conduct in respect of the first complaint fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience, he was not satisfied that it fell significantly below that standard (as required by s 139B(1)(a), see below) and was, therefore, not satisfied that the first complaint had been made out ([264]-[266]).

8. [112]

   In this appeal, the appellant challenges the Tribunal’s findings of unsatisfactory professional conduct (complaints 1 and 2) and the bases for such findings, as well as the finding that complaint 3 was made out. She seeks that the Tribunal’s orders be set aside and that this Court substitute the minority opinion of the Principal Member or, in the alternative, that the matter be remitted to the Tribunal constituted by the Principal Member and three members other than the Senior Members and the General Member. Further, and in the alternative, the appellant seeks an order that the matter be remitted to the Tribunal to be heard and determined by an entirely differently constituted tribunal.

The grounds of appeal

1. [113]

   The appellant’s amended grounds of appeal are:

2. [114]

   The appellant accepted that she needs leave to appeal in respect of ground 7 but contended that she did not require leave in respect of the balance of the grounds.

3. [115]

   Ground 2 contains 9 sub-grounds, which have been extracted from the appellant’s written submissions and are identified and addressed below when the grounds are dealt with.

The background to the proceedings

1. [116]

   Because of the breadth of the grounds and, in particular ground 5(a), which alleges a denial of procedural fairness relating to the appellant’s mode of dispensing and prescribing Somatropin, it is necessary to set out in some detail the procedural background to the proceedings.

2. [117]

   The original complaint arose from a mandatory notification made by the Pharmaceutical Regulatory Unit (PRU) to the Medical Council concerning the appellant’s prescribing of Somatropin. In response, the Medical Council imposed conditions on the appellant’s registration under s 150 of the Law, effective on and from 29 November 2019, which prohibited her from prescribing Somatropin ([277]). The mandatory notification led to an investigation into the appellant by the Commission, in the course of which it sought opinions from Professor John Carter, an expert endocrinologist, and Dr Emery Kertesz, an expert general practitioner.

3. [118]

   In response to the Commission’s letter of instructions dated 18 December 2020, Professor Carter provided a report dated 16 January 2021. When addressing the appellant’s prescribing to specific patients, he opined at page 7 of the report:

The proceedings in the Tribunal

1. [119]

   On 8 February 2022, the Commission commenced disciplinary proceedings against the appellant in the Tribunal by filing an application for disciplinary orders with a complaint pursuant to s 145D of the Law.

2. [120]

   On 30 May 2022, the matter was listed in the Tribunal for pre-hearing argument (including for rulings on evidence) before the Principal Member. A portion of the transcript of that hearing is before this Court. Ms Mathur SC, who appeared with Ms Alderton on behalf of the appellant, in this Court, also appeared on behalf of the appellant in the Tribunal.

3. [121]

   Of present relevance, Ms Mathur submitted to the Principal Member that, if the Commission sought to argue that the appellant’s motive for prescribing Somatropin was “to achieve financial gains as compared to clinical indication or incompetence” then this needed to be particularised. Ms Mathur also referred to a suggestion “that there is something untoward in relation to the manner in which the drugs were paid for”. Ms New, who appeared for the Commission, indicated that she had heard the submission and, in substance, would consider whether further particulars ought be provided. The Principal Member confirmed that, if the Commission were relying on such a motive, it ought be particularised.

4. [122]

   Also at the hearing on 30 May 2022, the Principal Member ruled that much of the PRU report to the Medical Council (which appears to have accompanied its mandatory notification) was irrelevant and it was redacted accordingly. That portion of the transcript of 30 May 2022 was not reproduced for this Court. This matter is germane only to sub-ground (3) of ground 2.

5. [123]

   Subsequent to the preliminary hearing referred to above, the Commission sought a supplementary report from Dr Kertesz, who was asked to opine on the basis of the following further assumption and material:

6. [124]

   In his supplementary report dated 13 August 2022, Dr Kertesz said:

7. [125]

   On 16 August 2022, the Commission filed its amended complaint in the Tribunal in a form which indicated (by strike through and underlining) the changes which had been made to the complaint as originally filed on 8 February 2022. I understood it to be common ground that the amendments were, at least in part, responsive to further medical records having been provided by the appellant to the Commission since the filing of the original application and complaint. The appellant, by her solicitors, requested that a clean copy of the amended complaint be provided and filed. She also sought an extension of time to deal with the amended complaint. On 6 September 2022, the Commission filed a clean version of its amended complaint.

8. [126]

   Of present relevance, the “Background to Complaint One” in the amended complaint included the following:

9. [127]

   The particulars of the first complaint were augmented and alleged, of present relevance, that the appellant “prescribed and inappropriately dispensed” Somatropin directly to Patients A to I.

10. [128]

    The first complaint alleged:

11. [129]

    The particulars to the first complaint included that the appellant had, in relation to the treatment of ten patients (Patients A-J), inappropriately prescribed and dispensed Somatropin/Scitropin (HGH) (Somatropin) directly to Patients A to I; inappropriately prescribed other drugs, including those listed in Sch 4 to the Poisons List proclaimed under s 8 of the Poisons and Therapeutic Goods Act 1966 (NSW), to Patients A to J and inappropriately managed the prescribing of Somatropin and those other drugs, in circumstances where they were prescribed for “off-label” purposes, as summarised in the table below.

12. [130]

    In respect of each of Patients A-J, the Commission alleged in the amended complaint that between specified dates, the patient inappropriately prescribed, relevantly, Somatropin and in doing so failed to undertake an appropriate assessment of the patient before prescribing the medication to the patient, including:

13. [131]

    The appellant’s admission in her reply to this particular (see below) is relevant to ground 7.

14. [132]

    The second complaint, which was admitted, alleged that the appellant was guilty of unsatisfactory professional conduct under s 139B(1)(b) of the Law in that she contravened a provision of the Regulation. The particulars to the second complaint had two aspects: first, that the appellant created records such that other practitioners would find it difficult to continue management of the patients; and/or which are illegible and difficult to decipher; and that the appellant failed to make and keep adequate records in relation to Patients A to J in various particularised respects as summarised in the table and the following paragraph.

15. [133]

    In addition to the particulars in the table above, the Commission alleged that, in respect of Patient A, the appellant had failed to record consultation notes for 18 October 2019, in circumstances where she claimed a Medicare benefit for a long consultation on that day.

16. [134]

    The third complaint alleged that the appellant was guilty of professional misconduct under s 139E of the Law in that she has:

17. [135]

    The particulars to this complaint were:

18. [136]

    Following the service of the amended complaint, the appellant sought further particulars by letter dated 9 September 2022 sent under cover of an email dated 12 September 2022. Of present relevance she asked the Commission what was meant by inappropriate dispensing within the meaning of s 139 of the Law (which deals with competence to practise medicine).

19. [137]

    In response, by letter dated 21 September 2022, the Commission said:

20. [138]

    The Commission attached a table to its letter which contained the following:

21. [139]

    On 19 September 2022, the appellant filed a reply to the amended complaint in which she said, of present relevance:

22. [140]

    In her reply, the appellant responded to particular iv (set out above) as follows:

23. [141]

    The appellant’s admission is relevant to ground 7.

24. [142]

    The Tribunal (constituted by the Principal Member alone) conducted a preliminary hearing on 17 October 2022 to address objections to evidence and other pre-hearing matters. The Commission and the appellant gave brief openings to inform the Principal Member of their respective cases. As to the allegation of improper dispensing, Ms Mathur said to the Tribunal in part:

25. [143]

    On 18 October 2022, the Tribunal (constituted by the Principal Member alone) dealt with objections to evidence, including an objection taken on behalf of the appellant to the following passage from Professor Carter’s report (set out in full above), which Ms Mathur submitted appeared to be “a personal opinion rather than an expert opinion”:

26. [144]

    The Principal Member ruled that the words, “[a]side from financial considerations” ought be deleted from the report. This left the balance of the sentence in evidence before the Tribunal.

27. [145]

    The substantive hearing before the Tribunal (constituted by the Principal Member, the Senior Members and the General Member) began on 28 March 2023. It is not necessary to summarise exhaustively what occurred at the hearing except in so far as particular pieces of evidence are relevant to particular grounds. Much of what follows in terms of the Commission’s opening, the appellant’s cross-examination and the written and oral submissions is only relevant to ground 5(a).

28. [146]

    The Commission’s opening included the following with respect to the first complaint:

29. [147]

    The appellant was cross-examined about her direct dispensing as follows:

30. [148]

    The General Member of the Tribunal also directed the appellant’s attention to Dr Kertesz’s report and in particular the author’s reference to “dispens[ing] the Somatropin to patients in lieu of referring Pharmacy prescribing, and she did so outside safety guidelines”.

31. [149]

    Dr Newberry, one of the Senior Members, questioned the appellant about the percentage of patients who were prescribed Somatropin. The appellant said that in 2017-2019, the majority of her patients were “cosmetic”. The appellant explained that the time she spent on private practice depended on what shifts she was rostered on by the hospital where she did shift work because she tried to “book around” her hospital shifts. The appellant responded to Dr Newberry’s question whether her patients (including but not limited to those to whom she prescribed Somatropin) had their own general practitioners or whether she was also their general practitioners:

32. [150]

    Associate Professor Holmes-Walker gave evidence about why particular patients would seek HGH. This evidence is relevant to sub-ground (7) of ground 2. In answer to a question from Dr Newberry, she addressed the phenomenon of those who are ageing actively trying to prevent its consequences. She said, in part:

33. [151]

    Associate Professor Holmes-Walker was also asked about “quality of life indices” (a patient’s self-assessment of the efficacy of the medication). She responded:

34. [152]

    Associate Professor Holmes-Walker was also asked about this topic by Member Lovrovich. She was asked what her response would be if a patient came in and said, “I’ve heard that Somatropin is just wonderful. Can you give me a script for that because I’m fatigued?”, to which she answered:

35. [153]

    Associate Professor Holmes-Walker also said that patients who “come with a self-diagnosis”, “think [HGH] is the solution” and have done internet research also ring “alarm bells”.

36. [154]

    The appellant also gave evidence about her patients generally and said that some “came well-informed” about anti-ageing.

37. [155]

    Professor Carter said, when explaining why he considered the appellant’s conduct fell significantly below the expected standard:

38. [156]

    Associate Professor Holmes-Walker also said that the benefits of HGH could be the result of the placebo effect although she considered that there could also be a clinical effect in terms of increase in muscle mass or reduction of body fat. She also said:

39. [157]

    As set out above, she had found patients’ self-assessment “quality of life” questionnaires as “singularly useless actually”.

40. [158]

    In her written reports, Associate Professor Holmes-Walker said, of present relevance:

41. [159]

    She added:

42. [160]

    The appellant completed her oral evidence on 31 March 2023, at which time the proceedings were adjourned for submissions on a later date.

43. [161]

    Although a date for reconvening the Tribunal in June 2023 was discussed on 31 May 2023, it would appear that the date convenient for all members of the Tribunal and the parties was 18 August 2023 and the proceedings were stood over until that date. However, the proceedings were further adjourned until 27 March 2024, almost a year after the completion of the evidence.

44. [162]

    For reasons which were not explained, the appellant put on her written submissions on 13 March 2024, before the Commission put on its written submissions on 19 March 2024. In those written submissions, the appellant addressed the allegation of the inappropriate dispensing of Somatropin by reference to the passage from Dr Kertesz’s report extracted above (which included the phrase, “the attraction of a fee”). The appellant submitted:

45. [163]

    The appellant summarised the effect of the evidence she had given in cross-examination on the topic as follows:

46. [164]

    Of present relevance, the appellant submitted in respect of the first particular (inappropriate dispensing) of the first complaint:

47. [165]

    In respect of the third complaint (that the conduct amounted to professional misconduct), the appellant submitted:

48. [166]

    In its written submissions to the Tribunal concerning the first particular of the first complaint (inappropriate direct dispensing), the Commission submitted:

49. [167]

    The Tribunal heard the parties’ submissions on 27 March 2024. In its oral submissions, the Commission referred to the issue of direct dispensing and submitted that this “removes pharmaceutical oversight and arguably invites a lack of objective approach to [Somatropin].”

50. [168]

    The Commission also submitted:

51. [169]

    Ms Mathur responded to the Commission’s submissions on the first particular of the first complaint (inappropriate dispensing). She identified the issue as one that “loom[ed] large” in the Commission’s submissions and its “assertion that it significantly impacted the [appellant’s] objectivity.”

52. [170]

    In response to the submission (based on SciGen’s documents) that the appellant had, between June 2018 and June 2019 spent in the order of $348,000 ($29,000 per month) on Somatropin, Ms Mathur calculated, by reference to the evidence, including the appellant’s, that this amount equated to 36 patients spending $8,580 each in that year on 52 carts (a cart being a week’s supply of Somatropin), with each cart costing in the order of $165, or $200, depending on whether the patient bought it in bulk. This calculation could be performed as every patient received the same dose of Somatropin. Ms Mathur also confirmed that the Commission identified 33 patients in total who were identified as having been prescribed Somatropin, of whom the Commission selected 10 to base its complaints. Ms Mathur relied on the appellant’s oral evidence (for which there was no other source in the evidence) that she dispensed and prescribed Somatropin to about 20% of her patients.

53. [171]

    In response to the Commission’s submission that the appellant was known for prescribing Somatropin and received referrals on this basis, Ms Mathur submitted that, as there was no evidence from any patient, there was no evidence to support that proposition.

The Tribunal’s reasons

1. [172]

   The grounds of appeal are numerous and several paragraphs of the Tribunal’s reasons are the subject of more than one ground. For this reason, I propose to set out below the principal paragraphs which the appellant submitted give rise to questions of law as alleged in grounds 1-6 and or a question of fact in ground 7. For ease of reference, I propose, subject to the following, to set out these paragraphs in numerical order.

2. [173]

   It is apparent from the structure of the reasons that the Principal Member wrote his reasons first and that the majority reasons are responsive to those reasons. Thus, the Tribunal’s reasons contain references to the paragraph numbers of the Principal Member’s reasons, in part to indicate its disagreement with him. As the Principal Member’s reasons do not constitute the reasons of the Tribunal (s 57 of the NCAT Act), I propose to refer to them only where it is necessary to do so to understand the reasons of the Tribunal and to insert them where they fit in the order in which the Tribunal has expressed its reasons.

3. [174]

   The Tribunal made reference to the Law and its effect on the exercise of its functions in the following passage, which is relied on to challenge sub-ground (1) of ground 2:

4. [175]

   The Tribunal said, of the redaction of the PRU report, at [279]:

5. [176]

   This passage in [279] is the subject of sub-ground (3) of ground 2.

6. [177]

   The Tribunal referred to the absence of any complaint from the appellant’s patients and the weight to which that factor appeared to have been given by the Principal Member, as follows.

7. [178]

   These paragraphs are subject to challenge in sub-ground (4) of ground 2.

8. [179]

   The Tribunal referred to the Pharmaceutical Benefits Scheme (PBS) and the Therapeutic Goods Administration (TGA) in the following passage (which is challenged in sub-ground (5) of ground 2):

9. [180]

   At [285], the Tribunal said:

10. [181]

    This paragraph is relied on by the Commission to indicate that the Tribunal correctly applied the test in s 139B(1)(a). It is also relied on by the appellant in support of sub-ground (2) of ground 2.

11. [182]

    The Tribunal made findings about Professor Carter’s expertise in the course of accepting his evidence. The appellant submitted that the error alleged in ground 1 appears from [290]-[292] of its reasons as follows:

12. [183]

    Paragraph [291] is also relied on by the Commission with respect to sub-ground (2) of ground 2.

13. [184]

    The Tribunal referred to these tests as follows:

14. [185]

    Paragraphs [297] and [328], together with [331] and [335](i) and (ii) (set out below in number order), are the subject of ground of appeal 7(a). The Commission relies on [296] to put [297] in context and to demonstrate that the apparent force of ground 7 disappears when the reasons are read fairly as a whole in light of what was in issue in the proceedings.

15. [186]

    The Tribunal addressed the question of records at various points in its reasons, including in the following:

16. [187]

    Ground 5(b) of appeal relies, in part, on [301].

17. [188]

    It was not disputed that, approximately every month when she was prescribing Somatropin, the appellant purchased in the order of $29,000 of the drug, which she kept in a freezer in her rooms, and dispensed directly at cost to patients who, accordingly, were relieved of the need to present a prescription at a pharmacy because their prescriptions for Somatropin could be filled by the appellant at the time of consultation.

18. [189]

    The Tribunal found, with respect to the appellant’s direct dispensing of Somatropin that it had the effect of circumventing the oversight and surveillance which the involvement of a pharmacist brings ([284] and [346]). With respect to the financial aspect of direct dispensing, the Tribunal said:

19. [190]

    Paragraph [314] is the subject of challenge in sub-ground (6) of ground 2. The question of financial incentive is raised by ground 5(a), which alleges denial of procedural fairness.

20. [191]

    The Tribunal said, of present relevance:

21. [192]

    Ground 3 of appeal challenges the Tribunal’s decision not to accept the evidence of Associate Professor Holmes-Walker on the extent to which the appellant’s conduct fell below the requisite standard, which was the ultimate question for the Tribunal. Ground 4 of appeal alleges that the Tribunal failed to consider a substantial and clearly articulated argument about the benefits of HGH in respect of anti-ageing. The paragraphs set out above are relevant to at least both of these grounds. Paragraph [331] is also challenged in ground 5(b) and ground 7(a).

22. [193]

    The Tribunal addressed this matter at [336]-[337] as follows:

23. [194]

    These paragraphs, which are the subject of challenge in sub-ground (7) of ground 2, were in response to [111]-[112] of the Principal Member’s reasons, as follows:

24. [195]

    The Tribunal addressed, in part, the appellant’s admittedly poor record-keeping as follows:

25. [196]

    The appellant challenges [342]-[344] in her submissions in support of ground 5(b) of appeal.

26. [197]

    The Tribunal addressed the identification of “red flags” in the context of HGH in the following paragraphs:

27. [198]

    The appellant challenges the findings at [350]-[353] in sub-ground (9) of ground 2.

28. [199]

    The Tribunal said, at [354], that it was “comfortably satisfied that the practitioner’s prescribing and management of the off-label medications to the ten patients referred to in the [Commission]’s application fell significantly below the requisite standard.”

29. [200]

    The reference to comfortable satisfaction can be taken to be a reference to Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (Briginshaw), which was expressly referred to by the Principal Member who said at [161]:

30. [201]

    As referred to above, it would appear that the Principal Member wrote his reasons first and that the Tribunal’s reasons were responsive to these. The Principal Member said (in his minority reasons) at [255]-[256]:

31. [202]

    The Tribunal, in its majority reasons, responded to these paragraphs at [355]:

32. [203]

    The appellant challenges [355](i) and (ii) in support of ground 7(a). She challenges [355](iv) and (vi) in support of ground 5(b). She challenges [355](xi) with respect to ground 5(a).

Preliminary observations and general principles

1. [204]

   Before turning to the grounds, it is important to address the legislative context in which the Tribunal’s decision was made, including the composition of the Tribunal.

2. [205]

   Disciplinary proceedings, such as the proceedings in the Tribunal, are not criminal proceedings. They have been described as sui generis: Weaver v The Law Society of NSW (1979) 142 CLR 201 at 207; [1979] HCA 35. Their purpose is the protection of the public, although it has been recognised that, from the perspective of a practitioner, they may have consequences which appear to be penal: Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; [2004] HCA 42 at [30]-[35] (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ).

3. [206]

   There are various ways in which a complaint can come before a Tribunal. In the present case, as referred to above, the PRU made a mandatory notification to the Medical Council as a result of the appellant’s prescribing Somatropin. The definition of “notifiable conduct” in s 140 includes “(d) placing the public at risk of harm by practising the profession in a way that constitutes a significant departure from accepted professional standards.” Various persons, including, it would appear, the PRU, have an obligation under Division 2 of Part 8 of the Law to inform, in this case, the Medical Council, if they form a reasonable belief that a medical practitioner (referred to as a registered health practitioner) has behaved in a way that constitutes notifiable conduct. Subdivision 2 of Division 3 of Part 8 of the Act deals with the making of complaints. Section 144B provides that any person can make a complaint and that a complaint may also be made by the Council (in this case, the Medical Council). Pursuant to s 145C, the Commission may refer a complaint to the Tribunal, after consultation with the Council. This appears to be what occurred in the present case.

4. [207]

   Section 38(2) of the NCAT Act provides that “[t]he Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.” Although the Tribunal is not bound by the rules of evidence, it has been accepted that in order to uphold the complaints, the Tribunal must be “comfortably satisfied” that the alleged conduct actually occurred: Gautam v Health Care Complaints Commission [2021] NSWCA 85 (Gautam) at [85]-[87] (Payne JA, Leeming JA and Simpson AJA agreeing). Where a court, and not the Tribunal, makes a finding in a disciplinary proceedings, it tends to be expressed in terms of s 140 of the Evidence Act 1995 (NSW), or that it is “on the balance of probabilities”, having regard to the principles in Briginshaw: see, for example, Kumar v Legal Services Commissioner [2015] NSWCA 161 at [60] (Leeming JA, Basten JA and Sackville AJA agreeing). Because of the wording of s 38(2) of the NCAT Act, tribunals do not necessarily refer to legal authorities or provisions of the Evidence Act, but may, as the Tribunal did in the present case, put the matter in terms of “comfortable satisfaction”, to indicate that the decision-maker appreciates that, when a grave allegation is made, they ought reach a state of comfortable satisfaction before finding that it has been made out.

5. [208]

   Section 165B(1) of the Law relevantly provides that if a complaint is referred to the Tribunal, the Tribunal must inform the Council for the health professional of the referral and the Council for the health profession must select three persons to sit as members of the Tribunal in the proceedings. Where the complaint is in respect of a medical practitioner, the Tribunal is to be constituted by a Divisional member who is a judge of the Supreme Court or the District Court; two health practitioners who are registered in the same health profession as the person who is the subject of the inquiry; and a lay person (not a health professional): ss 165 and 165B(2).

6. [209]

   Section 165M requires the Tribunal to give a written statement of the decision which must set out findings on material questions of fact, refer to any evidence or other material on which the findings were based and give the reasons for the decision. These reasons are to be provided to the parties and the relevant Council (in this case, the Medical Council) and may be published: s 165M(1) and (4).

7. [210]

   As referred to above, the members who constitute the Tribunal may be divided in opinion, in which case the opinion of the majority is taken to be the opinion of the Tribunal: s 57 of the NCAT Act.

8. [211]

   It follows that the Law and the NCAT Act expressly contemplate that the reasons for the Tribunal’s decision will be expressed by non-lawyers (since three out of four Tribunal members will be non-lawyers and the scenario which eventuated, that the Judicial Member is in the minority, is envisaged): see Bisley Investment Corporation Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132 at 157 (Sheppard J).

9. [212]

   The approach required to be taken by this Court was summarised in Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 (Liang) at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); [1996] HCA 6, referring to the decisions of the Full Court of the Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 and McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616 (Spender, Foster and O’Loughlin JJ), as follows:

10. [213]

    While these decisions are commonly applied to decisions of an administrative nature, they have also been applied when a ground of appeal alleges insufficiency of reasons by a judge: see the detailed summary of the authorities in New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 (Orr) at [65]-[77] (Bell P, Ward and McCallum JJA agreeing). The Tribunal’s obligation to give reasons in the context of disciplinary proceedings is not markedly different from that of a court, having regard to the serious issues and serious consequences for the practitioner and the public: Gautam at [55]. The requirement to read reasons fairly and as a whole remains applicable.

11. [214]

    The Tribunal’s decision is a “profession decision” within the meaning of cl 29 of Part 6 of Sch 5 of the NCAT Act. Because the appeal is a “non-lawyer appeal”, there is a right of appeal to the Supreme Court or this Court on any question of law but a requirement for leave to appeal “on any other grounds”: cl 29(4)(b), Sch 5. Because the Principal Member was an acting judge of the District Court, this Court is the appellate court for this appeal: s 48(1)(vii) and (2)(f) of the Supreme Court Act 1970 (NSW).

12. [215]

    Ms Mathur addressed the grounds in a different order than as set out in the amended notice of appeal and made several submissions which she sought to make germane to more than one ground of appeal. In deference to the way she put her submissions, I will endeavour to follow the order in which she sought to address the grounds, in so far as it can be discerned.

13. [216]

    The submissions advanced by Ms Mathur in support of this ground went considerably beyond the ground as expressed. However, as Ms Heger SC, who appeared with Ms New and Mr Beshara on behalf of the Commission, addressed the submissions as put, it is not necessary to confine Ms Mathur to the terms of the ground.

14. [217]

    In substance, Ms Mathur submitted that the Commission’s case, in so far as it was based on an allegation that the appellant’s clinical judgment may have been compromised by financial reasons, had not been properly particularised. She submitted that the failure on the part of the Commission to particularise this aspect of its complaints had the consequence that the appellant did not address this matter in her evidence. Further, she submitted that counsel for the Commission in the Tribunal did not squarely put the matter to the appellant in cross-examination and therefore the appellant was deprived of an opportunity to answer it and, thus, was denied procedural fairness.

15. [218]

    Ms Mathur accepted that she had not detected the denial of procedural fairness in the course of the proceedings before the Tribunal and had, therefore, not objected to the Commission’s submissions concerning financial considerations. However, I understood her to submit that any failure on her part ought not be visited on the appellant, who was relevantly denied procedural fairness.

16. [219]

    The findings of the Tribunal which are relevant to ground 5(a) are set out above. The ground turns on whether there was a denial of procedural fairness.

17. [220]

    The Commission’s case on inappropriate dispensing of Somatropin was, in substance, that the appellant adopted a business model which did not involve proper individualised patient care, having regard to the risk of serious side effects posed by Somatropin and that the business model compromised her professional judgment. As the Tribunal observed in its finding at [314] (extracted above), there were no receipts issued by appellant in evidence and the Tribunal had to rely on the appellant’s oral evidence as to the cost of consultations, prescriptions and (by inference) the medication she dispensed to them.

18. [221]

    Professor Carter’s opinion, following the rejection of the wording referring to financial considerations, was that it was difficult to understand why the appellant personally dispensed Somatropin herself rather than have the prescriptions she gave to her patients filled by a pharmacy. The Commission’s hypothesis as to the reasons for direct dispensing were: the appellant wanted to avoid the oversight (of her and her patients) which would inevitably come from a pharmacy; and there was a financial benefit to her in direct dispensing since she came to be known for it and, therefore, it increased the number of patients who would come to her for consultations to obtain Somatropin, which other practitioners might not be as willing to prescribe off-label and directly dispense as the appellant.

19. [222]

    The hypothesis for which the appellant contended was that direct dispensing was convenient to her patients (because she regularly re-stocked her supply), saved them the embarrassment of presenting a script for Somatropin at a pharmacy and was not motivated by financial gain (because she sold Somatropin to her patients at cost).

20. [223]

    Ultimately, Ms Mathur conceded that the Commission’s case was sufficiently put in its written and oral submissions to the Tribunal. However, she submitted that because it was not sufficiently particularised by the Commission, the appellant was denied the opportunity of giving evidence as to her business model. Ms Mathur also submitted that, although there was no denial of procedural fairness in the Tribunal’s finding that the appellant’s business model might create a financial incentive for her patients to obtain Somatropin directly from the appellant, there was a denial of procedural fairness in the Tribunal’s finding that her clinical judgment was affected by financial motive. Her ultimate submission, as put orally to this Court was:

21. [224]

    I consider that the Commission’s particulars were sufficient to raise financial considerations as a motive which affected the appellant’s practice of directly dispensing Somatropin. In its provision of further particulars on 21 September 2022, the Commission spelled out the connection with the preliminary hearing on 30 May 2022 (and, by necessary implication, the admonition by the Principal Member that financial motive would need to be particularised) and Professor Carter’s opinion that, in effect, there was no professionally appropriate reason for the appellant to dispense Somatropin directly to her patients. Although Professor Carter’s opinion (that, professionally appropriate reasons being absent, the appellant’s reason must be, by process of elimination, financial) was subsequently rejected as falling outside the parameters of an expert opinion, his opinion was incorporated into the Commission’s particulars. Although this method was not ideal, it was sufficient to put the appellant on notice of the way in which the Commission put its reliance on financial considerations to fulfil the requirements of procedural fairness.

22. [225]

    The financial motive having been raised, the appellant was on notice that her business model was relevant to the allegation of inappropriate dispensing. She gave evidence, for example, that she supplied Somatropin at cost, and ultimately accepted that this was beneficial to her patients, none of whom obtained Somatropin from a pharmacy, because she could supply it more cheaply to them than a pharmacist could (because the pharmacist would need to build in a profit margin). In the course of her evidence, as set out above, she was asked about the percentage of her patients who were prescribed with Somatropin and gave evidence about how many standard doses (“carts”) she would dispense. Further, the evidence established that she purchased about $29,000 worth of Somatropin per month for the June 2018-June 2019 year and therefore, necessarily, bore the holding costs of such stock before it was dispensed at cost to her patients.

23. [226]

    It follows from Ms Mathur’s concession that there was no denial of procedural fairness in the Tribunal’s finding that the appellant’s business model gave her patients a financial motive to consult her because they knew that she directly dispensed Somatropin at cost, that the Tribunal was permitted to find, as it did, that the appellant had a corresponding financial motive. The appellant was on the other side of the transaction: any financial benefit to the patient from the provision of her services necessarily gave her a competitive advantage and was, therefore, to her own financial benefit. Unlike a pharmacy, which solely dispenses drugs (and therefore, as a matter of financial imperative, charges a margin for profit on top of the cost price), the appellant was providing a composite service which involved dispensing, prescribing and consulting, which she could bundle in a way which suited her, including by not charging a mark-up on the Somatropin which she directly dispensed to the patients to whom she prescribed it. As there was no suggestion that the bundle was loss-leading or that the appellant was not seeking to run her medical practice at a profit, it was open to the Tribunal to consider that the practitioner’s business model took account of the holding costs of $29,000 worth of Somatropin per month.

24. [227]

    These matters were canvassed in the oral evidence, as extracted above. Even if the appellant had not given evidence in chief about those matters, they were sufficiently raised in cross-examination by the Commission and questioning from the members of the Tribunal to put the appellant on notice of the importance of the issue (which, as Ms Mathur acknowledged in her oral submissions in the Tribunal, loomed large in the Commission’s case). The forensic opportunity was available: the appellant had the opportunity to give evidence in re-examination on the effect of financial considerations on her professional judgment when directly dispensing Somatropin to her patients, since it had been squarely raised by the cross-examiner and the Tribunal.

25. [228]

    While it was unfortunate that the hearing in the Tribunal was so protracted, it is apparent from the transcript of the resumed hearing in March 2024 that both parties had the transcript from the hearing in March 2023 but that the Tribunal did not. Indeed, it was Ms Mathur who provided a clean copy of her transcript to the Tribunal. It is plain from Ms Mathur’s written submissions to the Tribunal that the appellant appreciated, from her cross-examination and from the evidence of the experts, that, relevantly, the Commission’s case in respect of alleged inappropriate dispensing was that her professional judgment was affected by her direct dispensing to patients. While Dr Kertesz’s inference that the appellant was benefiting by a mark-up on the cost price of Somatropin was refuted by the appellant in her oral evidence, this did not dispose of the issue, which remained a live one, as was plain in the course of the evidence. Further, there was an additional safeguard which added to the procedural fairness of the hearing: the appellant, as was customary, was called to give oral evidence last, which meant that she had been privy to all of the evidence adduced by both the Commission and on her behalf before she was required to give oral evidence and be cross-examined.

26. [229]

    I am not persuaded that ground 5(a) has been made out.

27. [230]

    The appellant identified [290]-[291] (extracted above) as bearing on this ground. It was common ground that the Tribunal’s task when deciding whether a practitioner was guilty of unsatisfactory professional conduct within the meaning of s 139B(1) was to identify “the standard reasonably expected of a practitioner of an equivalent level of training or experience” and then assess whether the appellant’s conduct was “significantly below” that standard.

28. [231]

    Ms Mathur submitted that, in substance, the Tribunal held the appellant to the standard reasonably expected of an endocrinologist rather than the standard reasonably expected of a general practitioner of her level of training or experience and therefore had erred in applying the relevant test in s 139B(1).

29. [232]

    I am not persuaded that a fair reading of the Tribunal’s reasons indicates that it applied other than the correct standard. The Tribunal said, in effect, that:

    1. (1)

       any medical practitioner (whether general practitioner, endocrinologist or other medical practitioner) who prescribes HGH (such as Somatropin) off-label must adhere to the same standard of patient monitoring and risk management, because of the nature of such drugs and their potential to cause adverse side effects; and

    2. (2)

       in order to meet that standard, a medical practitioner (including a general practitioner) who proposes to prescribe such drugs must develop an appropriate understanding of the risks associated with such drugs; of the need to assess patients for suitability for such drugs; and of the way in which monitoring ought be conducted to detect the presence of side effects so as to minimise the risk to the patient.

30. [233]

    I am not persuaded that the Tribunal, in making these findings, did other than identify “the standard reasonably expected of a practitioner of an equivalent level of training or experience” as the appellant. That the applicable standard for the applicant, as a general practitioner, corresponded with the applicable standard for any medical practitioner who was prescribing Somatropin (or equivalent) for an off-label purpose, does not make the standard any less applicable to the appellant for the purposes of s 139B(1). This conclusion is fortified by the circumstance that the Tribunal, on more than one occasion, articulated its task in terms which reflect the language of s 139B(1): see, for example [285] (extracted above).

31. [234]

    In her submissions in support of ground 1, the appellant raised various factual matters which I do not consider fall within ground 1 and which appear to constitute an attack on the merits of the Tribunal’s decision. It is not necessary to address these. Ground 1 has not been made out.

32. [235]

    Ground 2 is extremely wide in its terms. However, when the appellant’s submissions in support of the ground are analysed, ground 2 incorporates a number of separate challenges to the approach taken by the Tribunal which are identified in the appellant’s written submissions. These are:

    1. (1)

       the Tribunal substituted the “paramount consideration” of the Law for the onus and standard of proof ([269]-[273]);

    2. (2)

       the Tribunal failed to apply the onus and standard of proof to the expert evidence by failing to “grapple” with differences between the experts and purporting to accept the evidence of each of the experts ([285] and [290]);

    3. (3)

       the Tribunal inappropriately noted that the redactions to the PRU report were inconvenient ([279]), in circumstances where the Principal Member had ruled that the unredacted PRU report was not admissible;

    4. (4)

       the Tribunal did not accept the appellant’s evidence as to particular consultations unless it was reflected in her contemporaneous clinical notes when this finding was not open to the Tribunal in the absence of evidence from the appellant’s patients to gainsay the appellant’s own evidence ([280]-[281]);

    5. (5)

       the Tribunal speculated on matters for which there was no evidence: namely, the circumstances in which HGH can be prescribed “on-label” and therefore be obtained by patients at a subsidised price under the PBS ([283]); and the “rigorous evaluation” conducted by the TGA;

    6. (6)

       the Tribunal speculated on matters for which there was no evidence and inverted the onus of proof by finding that the fact that the appellant dispensed Somatropin “at cost would be a significant financial incentive for many patients to consult with the practitioner, thereby raising the number of patients attending her consultations” ([314]);

    7. (7)

       the Tribunal speculated on matters for which there was no evidence and inverted the onus of proof by finding that ageing patients may have a strong predilection for anti-ageing medication, despite its poor prospects of being effective ([336]);

    8. (8)

       the Tribunal’s finding that the evidence in support of the efficacy of HGH is anecdotal and that it is possible that such anecdotal effects may correspond with the placebo effect was contrary to the expert evidence of Associate Professor Holmes-Walker and misapprehended the applicable standard of proof ([337]); and

    9. (9)

       the Tribunal engaged in speculation on the characteristics of the appellant’s patient cohort by inferring that they were “drug seeking” ([350]-[353]).

33. [236]

    The appellant’s prescribing of Somatropin and her management of her patients were particulars 2 and 3 of the first complaint. Thus, it can be seen from the way in which the Tribunal expressed itself in [354] that it appreciated that it needed to be comfortably satisfied of the allegations in the particulars of the complaint before it needed to address the ultimate question: whether the appellant’s conduct fell significantly below the requisite standard.

34. [237]

    The appellant’s complaint arises from [269]-[273] of the Tribunal’s reasons.

35. [238]

    It would appear that the reference to s 3A of the Law is an error (albeit a typographical one) since Sch 1 [1A] of the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW) (the Adoption Act) inserts ss 3A and 3B and it is s 3B which provides:

36. [239]

    Schedule 1 [5A] of the Adoption Act defines “NSW provision”, in part, as a provision which forms part of the Law because of a modification made by the Adoption Act. Thus ss 3A and 3B are NSW provisions.

37. [240]

    Ms Mathur submitted that the references to s 3A of the Law in the above extract “suggest” that the Tribunal was prepared to rely on its own expertise rather than the evidence and, thus to “substitute proper application of the onus and standard of proof for an inexact exercise driven exclusively by consideration of the protection of the health and safety of the public”.

38. [241]

    I reject that submission. I regard the Tribunal’s reasons in [269]-[273] as amounting to a proper acknowledgement that it is exercising a function under the Law and, thus, that, in accordance with s 3B of the Law (which has been inserted by the Adoption Act) the protection of the health and safety of the public must be the paramount consideration. The Tribunal’s reasons, when read fairly and as a whole, indicate the care with which the Tribunal considered the evidence and based its ultimate findings on deficiencies in the appellant’s clinical records and the expert evidence relating to the appellant’s inappropriate dispensing and prescribing of Somatropin and her inadequate monitoring of the risks to which the ten patients were subjected as a result of that drug being prescribed off-label to them for purported anti-ageing purposes.

39. [242]

    Sub-ground (1) of ground 2 has not been made out.

40. [243]

    Ms Mathur submitted that the evidence of the experts differed in material respects and that the Tribunal’s express acceptance of the evidence of all three experts indicated that it failed to grapple with the differences between them and, in effect, avoided the necessary task of reconciling the differences between them with a view to selecting the evidence it accepted.

41. [244]

    As referred to above, the reasons of the Tribunal are to be read fairly and as a whole. There were significant areas of agreement between the experts: including the appropriate standards for monitoring patients receiving HGH off-label for anti-ageing or “wellness” purposes. It is plain from the balance of the wording of [285] that the Tribunal undertook an evaluative exercise in respect of the evidence of each expert with a view to ascertaining the benchmark standard. In these circumstances, when the Tribunal said that it accepted the evidence of all three experts, it cannot reasonably be taken to mean that it accepted every word in the evidence of all three experts, since there were differences in opinion, including as to whether the appellant’s conduct was significantly below the expected standard or merely below it.

42. [245]

    I accept the Commission’s submission that while the Tribunal said, at [285], that it accepted the evidence of all three experts, it is apparent from the Tribunal’s reasons, including [291], that the Tribunal weighed and analysed the evidence of the experts and took account of the different perspectives which were reflected in their respective expertise and experience.

43. [246]

    It is not necessary to summarise the evidence of each of the three experts to demonstrate that this occurred. It is sufficient to note the following.

44. [247]

    Professor Carter considered that a medical practitioner who prescribes HGH off-label has an obligation to ensure that the prescription is not going to cause side effects and is of benefit to the patient (beyond the placebo effect). This obligation required the medical practitioner to assess the patient at appropriate intervals to ascertain whether the risk of side effects had ensued and to monitor whether the desired health outcomes had been achieved, with a view to ceasing the drug if the outcome had not been objectively achieved or side effects were experienced. Professor Carter also considered that objective assessment of side effects by the prescribing medical practitioner was particularly important in circumstances where a patient’s assessment of “quality of life” may, in effect, be unreliable.

45. [248]

    Dr Kertesz’s evidence was to similar effect. He said that a practitioner who prescribes such drugs off-label must “monitor patients not only anecdotally but also from a biochemical or a pathology point of view to make sure that the drugs are not detrimental to those patients so that you have a real time monitoring of how they are going rather than those patients just saying ‘Well, I feel better’ or ‘I don’t feel better’”. His view with respect to the appellant’s conduct with respect to each of Patients A-J was, as expressed in his reports and confirmed in cross-examination:

46. [249]

    Associate Professor Holmes-Walker opined that the appellant had an onus, before prescribing HGH and after having prescribed HGH, to examine the patient’s history and symptoms carefully and weigh the risk of harm against the potential benefit and conduct appropriate screening tests. She considered that the appellant had an ongoing responsibility to monitor those patients for whom she had prescribed HGH at least every six months, which included to test the patient’s IGF-1 levels and reduce the dose of the HGH prescribed in response to any reported or detected side effects. Thus, although there were variations between the experts’ opinions, in terms of nuance and emphasis, there was considerable consensus, as the Tribunal noted.

47. [250]

    The Tribunal relied on Professor Carter’s opinions about the need for proper continuing management of patients who were prescribed with HGH because of the significant risk of side effects: [287], [290]-[291], [300] and [303]. It also referred in detail to the evidence of each of the experts in determining the appropriate benchmark standard and the extent to which the appellant fell below it.

48. [251]

    I consider that a fair reading of the Tribunal’s reasons indicates that its expressed acceptance of the three experts was tantamount to a statement that the Tribunal regarded each expert’s opinion as reliable, valuable and of assistance in the task to be performed by the Tribunal: namely to evaluate whether the complaints had been made out and to undertake the evaluative assessment of where the appellant’s conduct fell by reference to the benchmark. For these reasons, sub-ground (2) of ground 2 has not been made out.

49. [252]

    The Tribunal’s criticism of the redaction of the PRU report (which it attributed to the Commission) was no more than a side comment which had no bearing on its findings of fact. It does not amount to cavilling with the Principal Member’s ruling on admissibility. It does not give rise to any arguable question of law or fact and need not be addressed further.

50. [253]

    As this ground is related to ground 5(b), it is convenient to address it when ground 5(b) is addressed.

51. [254]

    The appellant submitted that there was no evidence for the findings as to the PBS and the TGA at [283]-[284]. She further submitted that the finding at [284] that the appellant was “circumventing all safety measures, compromising and endangering public safety” by dispensing and prescribing Somatropin off-label to her patients was a serious one to make in the absence of a proper evidentiary basis.

52. [255]

    It is significant that the appellant did not contend that the findings about the PBS and the TGA were wrong or that there had been a denial of procedural fairness associated with them but merely that there was no evidence to support them.

53. [256]

    As referred to above, s 38(2) of the NCAT Act permits the Tribunal to “inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.” It can be expected that the conditions which entitled a patient who had been prescribed with Somatropin on-label (and was therefore entitled to acquire it at PBS rates) and the rigour with which the TGA determines whether a particular drug ought be approved for use in Australia were known to the Tribunal. It is doubtful whether these propositions could, at least at the level of generality expressed by the Tribunal, be genuinely in dispute.

54. [257]

    In any event, I consider the Tribunal’s finding that the appellant’s dispensing and prescribing of Somatropin to her patients off-label “circumventing all safety measures, compromising and endangering public safety” was supported by the evidence before the Tribunal. Such evidence included evidence to the following effect:

    1. (1)

       if Somatropin is prescribed on-label, it must be prescribed in consultation with an endocrinologist and cannot merely be prescribed by a general practitioner without such consultation (as noted by the Tribunal at [290]);

    2. (2)

       if a prescription is filled by a pharmacist rather than personally dispensed by the prescribing medical practitioner, the pharmacist has a level of oversight of the prescription of the particular drug to the particular patient and is subject to safety guidelines about the purchase and storage of drugs, including Somatropin; and

    3. (3)

       the appellant’s admission in cross-examination (extracted above) that dispensing Somatropin directly “removes the oversight of the pharmacy as a layer”.

55. [258]

    For these reasons, sub-ground (5) of ground 2 has not been made out.

56. [259]

    Ms Mathur submitted in writing in support of this sub-ground:

57. [260]

    The effect of this submission is that unless there is direct evidence or an admission which corresponds with the finding made by the Tribunal, it is not open to the Tribunal to make the finding because there is neither evidence nor an admission to support it.

58. [261]

    This submission misunderstands the process of fact-finding and drawing inferences from evidence of primary facts. Tribunals of fact, including judges, juries and tribunals, are entitled to draw inferences from primary facts. The law does not regard so-called circumstantial evidence (that is, evidence other than direct evidence or admissions) as less weighty than direct evidence: indeed, it may have greater probative value, particularly if it does not depend on credibility: De Gruchy v The Queen (2002) 211 CLR 85; [2002] HCA 33 at [48] (Kirby J). If it were otherwise, the crime of murder would be positively non-justiciable as the victim, being deceased, cannot give evidence as to what occurred and the accused has the right to silence and, potentially, a motive to lie. Several of the leading cases on circumstantial evidence arise in this context: see, for example, Plomp v The Queen (1963) 110 CLR 234; [1963] HCA 44; Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35.

59. [262]

    As Mahoney JA said in Jones v Sutherland Shire Council [1979] 2 NSWLR 206 at 222 (in circumstances where the rules of evidence did apply):

60. [263]

    There is, as Ms Mathur has pointed out, no direct evidence from the appellant’s patients as to the reason why they consulted with the appellant and whether they were attracted by the circumstance that they could obtain Somatropin from her at a cheaper price than had they had to obtain it on prescription from a pharmacy. Nor did the appellant admit that this would have provided a financial incentive to her patients (although she did, ultimately, admit that, because she sold it at cost, it would have been cheaper for her patients to obtain it from her than from a pharmacy).

61. [264]

    While there may have been no direct evidence of a financial incentive, there was circumstantial evidence from which such an inference could be drawn by the Tribunal: that the appellant charged less for Somatropin than a pharmacy would have because she sold it to her patients at cost (and was prepared to incur holding costs, including capital costs and storage costs, to give herself that competitive advantage). This inevitably resulted in the appellant becoming known far and wide (as the evidence established) to those who sought HGH for anti-ageing purposes, who may have had difficulty sourcing it elsewhere or who may have wanted to minimise scrutiny.

62. [265]

    The appellant’s denial that her patients had such an incentive was simply a matter for the Tribunal to weigh in the balance. The Tribunal was entitled not to accept her denial (which related in any event to what was in the minds of her patients), including because an admission would have been adverse to her interests in the proceedings. The inference that this price differential would provide a financial incentive for the appellant’s patients to go to her rather than to another medical practitioner who might not dispense Somatropin at cost was at the very least open, if not positively compelling.

63. [266]

    The appellant also sought to challenge the final sentence of [314] where the Tribunal noted that as the appellant had not tendered any receipts, it had to rely on her oral evidence as to the cost of consultations, prescriptions and Somatropin. This challenge must fail. The Tribunal’s reasons made plain that it accepted the appellant’s evidence as to these matters, implicitly notwithstanding that she had not produced documentary evidence to corroborate it.

64. [267]

    Sub-ground (6) of ground 2 has not been made out.

65. [268]

    The appellant submitted that in [336], the Tribunal engaged in speculation and reversed the onus of proof. She relied on the Principal Member’s reasons at [111]-[112] of his minority opinion, which referred to the absence of any complaint by the appellant’s patients and the circumstance that the appellant considered her patients to be well-informed about anti-ageing.

66. [269]

    The observations I have made with respect to sub-grounds (5) and (6) of ground 2 also apply to this sub-ground. The Tribunal was entitled to inform itself as it saw fit, subject to the requirements of procedural fairness: s 38(2) of the NCAT Act. Accordingly, it was entitled to consider that at least some individuals who are getting old (with the concomitant reduction in virility, energy, muscle mass and so on) would prefer to halt, defer or reverse the effects of ageing and that this desire might be accompanied by a degree of wishful thinking in otherwise rational people. There was no suggestion that this was, if not a truism, something which could genuinely be disputed. In these circumstances, it is unsurprising that there is no evidence of any patient complaining. Well-informed people may still be credulous and wishful, particularly if they believe that they have access to an elixir of youth.

67. [270]

    Further, the evidence of Associate Professor Holmes-Walker extracted above also provides a basis for the inference in the present case since her experience indicated that an individual would come to practitioners such as herself (endocrinologists) wanting HGHs for an “anti-ageing” purpose: in other words, to counteract the effects of age, which are, at least in a physical sense, regarded objectively and experienced subjectively as negative.

68. [271]

    For these reasons, sub-ground (7) of ground 2 has not been made out.

69. [272]

    The word “anecdotal”, when read in context, was used by contrast with the undisputed fact that there had been no high-quality, double-blind placebo-controlled trials for HGH in a non-HGH deficient population. The expert evidence referred to above, including that of Professor Carter and Associate Professor Holmes-Walker, was to the effect that a patient’s self-assessment of the efficacy of HGH was unreliable (whether due to the placebo effect or otherwise). Thus, a medical practitioner was obliged, when assessing whether to prescribe Somatropin, to weigh up the uncertain benefit (apart from the placebo effect) of HGH against the potential for serious adverse side effects. For these reasons, sub-ground (8) of ground 2 has not been made out.

70. [273]

    The appellant submitted that there was no evidence that any of Patients A-J were drug-seeking or that their levels of drug use allowed the inference to be drawn that they were. On this basis, she submitted that there was no evidence to support the findings at [350]-[353].

71. [274]

    This submission appears to be based on the misapprehension that the Tribunal made any finding about the characteristics of the appellant’s cohort of patients in terms of whether they were drug-seeking. When the Tribunal’s reasons are read carefully, fairly and as a whole, it is plain that the Tribunal was concerned that the appellant appeared to be oblivious to, or insufficiently cognisant of, the risk that persons who were drug-seeking would seek her out to obtain HGH for various reasons, including that:

    1. (1)

       she dispensed to patients directly (thereby avoiding the additional layer of scrutiny which a dispensing pharmacy would have provided);

    2. (2)

       she did not regard it as suspicious when patients saw her only for anti-ageing concerns and saw their regular or other general practitioner for other health issues;

    3. (3)

       she did not seek an explanation from patients who lived distant from Bondi Junction, from which she principally practised, and in some cases as far away as Queensland, as to why they had come to her;

    4. (4)

       her periodic monitoring of patients must have been affected by physical distance from her patients to some degree; and

    5. (5)

       she was prepared not only to sell Somatropin to her patients at cost price but she would also give discounts for bulk purchases by individual patients.

72. [275]

    These matters were all germane to the Tribunal’s assessment of whether the conduct proved against the appellant fell significantly below the expected standard. For these reasons, sub-ground (9) of ground 2 has not been made out.

73. [276]

    In substance, the appellant submitted that it was legally unreasonable for the Tribunal not to accept the assessment by Associate Professor Holmes-Walker that the appellant’s conduct fell below, but not significantly below, the relevant standard. In other words, the appellant submitted that the Tribunal was bound to accept her assessment and that any other assessment was legally unreasonable.

74. [277]

    The appellant submitted that, if the Tribunal were to reject (or not accept) Associate Professor Holmes-Walker’s assessment on the basis that she was an endocrinologist, the Tribunal was also bound to reject Professor Carter’s opinions on the same basis. She further submitted that there was no reason to distinguish between the opinions of the two endocrinologists on the basis of their expertise, since each was well qualified and experienced.

75. [278]

    These submissions misapprehend the task to be performed by the Tribunal. The evidence of the experts was, in the main, opinion evidence. Their opinions were largely accepted by the Tribunal, which took care to reconcile any material differences between them. However, the ultimate question – to what extent the appellant’s conduct, as proved, fell below the requisite standard – was, pre-eminently, one for the Tribunal itself, albeit one in respect of which the experts could give their own opinions, which were taken into account by the Tribunal. The Tribunal’s reasons adequately explain its preference for Dr Kertesz’s and Professor Carter’s assessment. The appellant has failed to establish legal unreasonableness.

76. [279]

    This ground is formulated to correspond with authorities which establish that it may be inferred from a decision-maker’s failure to respond to a substantial, clearly articulated argument relying upon established facts, that the matter has not in fact been considered or that there has been a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24] (Gummow and Callinan JJ; Hayne J agreeing).

77. [280]

    I reject the submission articulated in the term of ground 4. It pays no regard to the Tribunal’s detailed reasoning, based on the expert evidence which was before them both orally and in writing. The Tribunal’s careful analysis of the experts’ opinions and the support, such as it was, for the use of HGH for anti-ageing was ample to deal with the appellant’s submission. Indeed, it is difficult to envisage what more the Tribunal could have said on the topic. Further, it is plain from the structure and content of the Tribunal’s reasons that it had regard to all of the Principal Member’s reasons. It was sufficient, where there was disagreement that they refer to the particular paragraphs and address them. It is not necessary, even for a judge, much less a Tribunal, to recite all of the evidence in the reasons. Reasons ought set out findings and reasoning: this task does not require (and is not improved by) a summary of the transcript or evidence.

78. [281]

    For these reasons, ground 4 has not been made out.

79. [282]

    The appellant challenged the Tribunal’s rejection of the appellant’s evidence of particular consultations ([344]) except in so far as it was reflected in her contemporaneous notes, which the Tribunal did accept, by reference to the paragraphs of the Tribunal’s reasons set out above.

80. [283]

    The effect of the appellant’s submissions was that it was not open to the Tribunal to reject her evidence as to particular consultations where there was no evidence from patients to gainsay it and it had not been squarely put to her that her evidence was false. She also relied on the particular wording used by the Tribunal. Ms Mathur submitted that while it would have been open to the Tribunal to reject the appellant’s evidence on the basis that it was unreliable having regard to the length of the intervening period of four years between the particular consultation and the appellant giving her evidence in the Tribunal, that was not what the Tribunal purported to do. Ms Mathur submitted that the Tribunal engaged in a blanket rejection of the appellant’s evidence of particular consultations in so far as her evidence was not reflected in the clinical notes.

81. [284]

    The high point of Ms Mathur’s submissions, which she submitted indicated that the Tribunal was applying a blanket rule rather than engaging in orthodox fact-finding, appears from the following extract from [344] (which is set out in full above):

82. [285]

    If indeed, Ms Mathur’s interpretation of the Tribunal’s reasons is correct, then this would amount to an error. However, I am not persuaded that the slight infelicity of language in [344] is a fair reading, when one has regard to the other paragraphs which deal with the same issue, which must bear on the way in which [344] ought be read, given the requirement to read reasons, particularly those written by non-lawyers, fairly and as a whole, without an eye attuned to error. For example, [355](iv) and (vi) make it clear that the Tribunal considers the appellant’s evidence of particular consultations (not her evidence as a whole) to be unreliable, having regard to the passage of time. It can also be seen that the Tribunal considered that the appellant had reconstructed the particular consultations, having regard to the reference to “[e]x post facto assertions in respect of patient consultations that occurred some four years prior [being] inherently unreliable” ([355](vi)).

83. [286]

    It is true that the Tribunal’s reasons do not conform to the usual verbiage used by trial judges, such as, “[h]aving regard to the passage of time and the witness’ oral evidence, I do not regard the witness’ evidence of particular consultations as reliable except in so far as it is reflected in her clinical notes of such consultations. To the extent to which the witness purported to have a recollection of a particular consultation, I am not satisfied that it is any more than a reconstruction.” Had any one of the three members who constituted the majority of the Tribunal been a lawyer, such a statement may well have found its way into the reasons. There may, in a judge’s reasons, have been a reference to a well-known authority such as Onassis v Vergottis [1968] 2 Lloyd’s Rep 403, in which Lord Pearce said at 431:

84. [287]

    However, I consider it to be clear, when the Tribunal’s reasons are read as a whole, that it did not accept the appellant’s evidence of particular consultations beyond what was in the clinical notes because it considered such evidence to be unreliable, having regard to the passage of time and in light of the appellant’s oral evidence, which was replete with guesses and admissions as to lack of recollection. It was not, in these circumstances, incumbent on the Commission’s counsel, to do other than test the appellant’s memory in cross-examination, as she did, and submit that the appellant’s evidence was unreliable. Ground 5(b) and sub-ground (4) of ground 2 rely, in my view, on a pedantic view of the Tribunal’s reasons which is at odds with the approach sanctioned by the High Court in Liang and summarised by this Court in Orr. Neither ground has been made out.

85. [288]

    Ms Mathur submitted that, while the Tribunal’s reasons were “lengthy and detailed”, they were “far from intelligible and clear”. She is critical of the Tribunal for responding to the Principal Member’s reasons rather than, presumably, starting afresh without reference to them, as would have been open to them. She submitted:

86. [289]

    The first sentence of this submission is, in effect, a complaint that the Tribunal (comprised of two medical practitioners and a General Member) did not write like a judge, whereas the Principal Member, who was a judge, did. The balance of the submission does not, in my view, give sufficient credit to the reasons of the Tribunal, when read fairly as a whole. The issues that arose were dealt with under convenient headings; the language was, when read fairly, reasonably clear. The Principal Member’s reasons were somewhat discursive and repetitive which may have infected, to a degree, the Tribunal’s reasons, because they were written in response to them. It is, in my view, plain that the Tribunal considered that the appellant’s conduct with respect to the first complaint fell below the relevant standard because of the combination of factors identified, including those identified by the appellant in the last sentence of the extract above.

87. [290]

    For these reasons, ground 6 has not been made out.

88. [291]

    In support of ground 7(a), the appellant relied on [297], [328], [331] and [355](i) and (ii). Ms Mathur submitted that the findings were erroneous because there was a plethora of evidence to support the administration of IGF-1 tests on the appellant’s patients and, accordingly, her monitoring of them. She submitted that leave ought be granted because this finding was so fundamental to the Tribunal’s reasoning. Ground 7(b) is related to ground 7(a) and relies on the factual finding in [331] that:

89. [292]

    Ground 7 has a degree of superficial attraction. The appellant’s clinical notes in respect of particular patients recorded that some IGF-1 tests were undertaken and the results noted.

90. [293]

    However, the Commission submitted that a fair reading of the Tribunal’s reasons did not lead to the conclusion that the Tribunal considered that no such tests were done but rather that the Tribunal considered that such tests as were done were not done for the purpose of determining whether any of the patients had an excess of growth hormone (this being the relevant risk factor identified by Professor Carter in [296]).

91. [294]

    I accept this submission. Although Ms Heger did not specifically refer the Court to the appellant’s admission in her reply, it is evident from the following admission that both the Tribunal’s finding and the Commission’s submission are soundly based (set out above but repeated for ease of reference):

92. [295]

    It is apparent from the Commission’s particulars and the appellant’s response that the appellant accepted that she had not ordered tests to determine whether there was growth hormone deficiency before she prescribed Somatropin. Thus, the Tribunal’s findings were entirely in accordance with the appellant’s admission.

93. [296]

    The Tribunal was careful in its reasons to qualify its finding that the appellant failed to order tests by purpose (to determine whether there was growth hormone deficiency) and by time (before she prescribed any Somatropin). To read its reasons otherwise is to fail to give each word its meaning in the sentence and in context. The qualifying words as to purpose and time are there because they have work to do. The Tribunal can be taken to be aware that the appellant conducted IGF-1 tests from time to time on her patients: it did not find to the contrary. But what it did find is that those tests were not done for the required purpose. This finding, far from being erroneous, was entirely uncontroversial. The appellant admitted that she had not done any such tests for that purpose before she prescribed Somatropin and maintained that it was not necessary that they be done. The Tribunal was entitled to accept that admission.

94. [297]

    While, as referred to above, Ms Heger did not specifically rely in this Court on the appellant’s admission in her reply, the terms of the applicant’s admission are relevant to the question whether leave to appeal ought be granted with respect to ground 7.

95. [298]

    As to ground 7(b), it was accepted that the appellant conducted some testing of her patients. The appellant’s expert, Associate Professor Holmes-Walker, said that monitoring of patients to whom HGH had been prescribed must be undertaken at intervals of no more than six months and must involve testing of the markers referred to by the Tribunal at [331]. As referred to above, Associate Professor Holmes-Walker regarded subjective patient assessments of well-being and “quality of life” as “singularly useless” and, therefore, of no value in assessing whether the risk of serious side effects had ensued. Her evidence was that the risk that was otherwise posed to patients who were prescribed Somatropin for “anti-ageing purposes” could only be mitigated by systematic monitoring by objective testing at the stipulated intervals of six months. The evidence established that, while the appellant performed some tests on her patients on an ad hoc basis, her monitoring fell far below what Associate Professor Holmes-Walker regarded as the minimum standard for a general practitioner prescribing Somatropin off-label.

96. [299]

    The Tribunal’s findings in [331] could have been expressed differently and possibly more clearly. However, in light of the matters referred to above, I do not consider that ground 7 warrants a grant of leave to appeal. Even if there was, technically, a factual error in the Tribunal’s reasons I am not persuaded that it reflected a material misapprehension of the evidence.

97. [300]

    For these reasons, I would refuse leave to appeal in respect of ground 7.

Conclusion

1. [301]

   As I propose that the appeal be dismissed, the matter can proceed in the ordinary course to the second stage, at which the Tribunal is required to consider the appropriate order or orders to make as a result of its findings.

Proposed orders

1. [302]

   For the reasons given above, I propose the following orders:

   1. (1)

      Refuse leave to appeal in respect of grounds 7(a) and (b).

   2. (2)

      Dismiss the appeal.

   3. (3)

      Order the appellant to pay the respondent’s costs of the appeal.