Medical Council of New South Wales v Smithson

1. [1]

   THE COURT: This is an appeal brought pursuant to cll 29(1)(d) and 29(2)(b) of Schedule 5 to the Civil and Administrative Tribunal Act 2013 (NSW) (“the CAT Act”) against the decision of the New South Wales Civil and Administrative Tribunal (“the Tribunal”) in Smithson v Medical Council of NSW [2021] NSWCATOD 17.

2. [2]

   The proceedings below concerned an appeal brought by the respondent, a psychiatrist, Dr Smithson, from a decision made by the appellant, the Medical Council of New South Wales (“the Council”) on 14 July 2020 to suspend his registration under s 150 of the Health Practitioner Regulation National Law (NSW) No 86a of 2009 (NSW) (“the National Law”). Section 150(1) of the National Law provides:

3. [3]

   Dr Smithson appealed to the Tribunal under ss 159 and 159B of the National Law. By s 159, an appeal lies to the Tribunal against a decision under s 150(1)(a). By subs (3) of s 159, the appeal is to be dealt with by way of a new hearing. Fresh evidence may be given.

4. [4]

   Section 159B provides an additional right of appeal to the Tribunal against, inter alia, a decision under s 150 with respect to a point of law. On the second day of the hearing Dr Smithson abandoned his s 159B appeal.

5. [5]

   By s 159C(1), on appeal against a decision of the Council, the Tribunal may by order:

The decision of the Medical Council

1. [6]

   The reasons of the Council were supplied only belatedly to this Court. The decision to suspend Dr Smithson’s registration under s 150 of the National Law was made on the basis of evidence that gave cause for suspicion that Dr Smithson had, in 2020, used illicit drugs. The evidence was not conclusive. The Council considered it sufficiently persuasive to trigger its obligation under s 150(1)(a) to suspend Dr Smithson’s registration.

2. [7]

   The reasons of the Council show that Dr Smithson had a long history of intervention by the authorities administering medical practice legislation. Briefly:

   1. (1)

      Dr Smithson first came to the attention of the Council (then known as the Medical Board of New South Wales) following a complaint made by the family of a patient who claimed that he had a sexual relationship with the patient while she was in his psychiatric care. The relationship continued over a prolonged period, during which time Dr Smithson used heroin with the patient. The patient later died of a heroin overdose.

   2. (2)

      In June 1997, Dr Smithson was referred to an Impaired Registrants Panel Inquiry, which noted concerns about his performance and health following the suicide of his wife. Those concerns related to illicit drug use and serious boundary violations with a female patient.

   3. (3)

      Dr Smithson ceased practising medicine in late 1997 and removed his name from the Register of Medical Practitioners (“the Register”). In June 1998, Dr Smithson agreed to the imposition of a condition not to practise medicine being imposed on his registration.

   4. (4)

      On 29 June 2000, the Medical Tribunal determined that Dr Smithson failed to comply with the conditions on his registration in that he failed to adhere to a drug testing protocol, had tested positive for morphine and admitted to having used heroin. The Tribunal made a finding of professional misconduct, ordered his registration be cancelled and ordered that he not be eligible to reapply to have his name reinstated to the Register for a period of at least three years.

   5. (5)

      On 2 November 2015, he applied to the Medical Tribunal for an order to have his name reinstated to the Register. The Tribunal found that he was unlikely to engage in drug related conduct and unethical boundary violations in the future. The Tribunal made a reinstatement order subject to conditions, including in relation to his practice, supervision and monitoring, in April 2016.

   6. (6)

      Dr Smithson returned to work as a relief registrar in the Psychiatric Emergency Care Centre at Royal North Shore Hospital in May 2017. He was supervised by two psychiatrists, who raised concerns about minor boundary related issues.

   7. (7)

      On 11 December 2017, 24 January 2018 and September 2018, Dr Smithson returned positive urine drug screen results for a “trace” of morphine.

   8. (8)

      Dr Smithson attended an Impaired Registrants Panel Inquiry on 14 June 2018 and refused to consent to conditions proposed by the panel.

   9. (9)

      Section 150 proceedings were commenced on 26 September 2018. The proceedings were adjourned and reconvened on 23 October 2018. While undertaking their deliberations, the delegates were made aware that Dr Smithson had made an application under s 163A to review his registration conditions relating to the drug testing protocol. The delegates determined that it would be inappropriate to make orders and instead referred the decision to the s 163A process.

   10. (10)

       On 20 November 2018, amended conditions were imposed on Dr Smithson under s 163B(d) of the National Law.

   11. (11)

       A drug test sample provided by Dr Smithson on 14 January 2019 returned positive for amphetamines (which was confirmed by a repeat test). A hair sample provided on 22 February 2019 returned positive for 6-monacetylmorphine (6-MAM), an active metabolite of morphine.

   12. (12)

       On 28 March 2019, the Council convened further s 150 proceedings. The Tribunal found that Dr Smithson posed a risk to the safety or health of the public. He was not suspended but conditions were imposed on his registration.

   13. (13)

       Positive hair screen drug test results were received on 22 February 2019, 23 May 2019 and 9 September 2019.

   14. (14)

       On 30 September 2019, s 150 proceedings were convened to consider Dr Smithson’s most recent results. A “not to practice” condition was initially imposed but removed by 11 February 2020 under s 150C. The previous conditions were reimposed.

   15. (15)

       On 30 March 2020 and 6 April 2020, urine drug screening tests returned positive results for morphine. A hair test on 7 April 2020 returned results for 6-MAM.

The appeal to the Tribunal

1. [8]

   In his appeal to the Tribunal, Dr Smithson stated seven grounds on which he contended that the Council erred in its approach to the question before it. It may here be noted that that was an incorrect approach. An appeal under s 159, being a new hearing, does not involve identification of error on the part of the Council. The Tribunal nevertheless considered the grounds of appeal, which it ultimately upheld.

2. [9]

   A large body of evidence was adduced before the Tribunal, substantially from toxicologists who expressed opinions about the evidence from which it might be concluded that Dr Smithson had used illicit drugs. The opinion of Professor Haber was extracted at [30]: “there was no direct evidence that heroin was used”. In its reasons the Tribunal reviewed the evidence before it, without comment. It identified its task as it perceived it, in the following way:

3. [10]

   Additional cases on the issue of a “fit and proper person” were discussed by the Tribunal at [47]-[49]. The Tribunal then had regard (at [50]) to the onus of proof, which it considered lay on the appellant (Dr Smithson), and appeared to accept that the test is that drawn from Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 at 361-2 (now in statutory form in s 140 of the Evidence Act 1995 (NSW)).

4. [11]

   The Tribunal stated (at [51]) that it would apply the following principle, drawn from reinstatement cases and extracted from Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 at [24]:

5. [12]

   At [83] the Tribunal referred to s 150 as providing to the Council the power to take “disciplinary action” for the protection of the health or safety of any person, or if it is satisfied that action is otherwise required in the public interest.

6. [13]

   The dispositive reasoning of the Tribunal was contained in the following passages:

7. [14]

   The Tribunal then set aside the decision of the Council “subject to the imposition” of a lengthy list of conditions under which Dr Smithson would be permitted to practice.

Notice of Appeal

1. [15]

   The appeal to this Court lay as of right as it involved only questions of law: cl 29(4)(b) of Schedule 5 of the CAT Act. For abundant caution, leave to appeal is nevertheless granted. The Council appealed to this Court on seven grounds:

Error is conceded

1. [16]

   Dr Smithson conceded that ground 5 was established in that the Tribunal did not consider the second limb of s 150 of the National Law, whether an order should be made if satisfied the action is otherwise in the public interest. The parties jointly sought the following orders by consent:

   1. (1)

      Leave to appeal be granted (if the Court considers that leave is required under cl 29(6) of Schedule 5 to the CAT Act);

   2. (2)

      Appeal allowed;

   3. (3)

      The Decision of the Tribunal is quashed;

   4. (4)

      The case be reconsidered by the Tribunal in accordance with the directions of the Court;

   5. (5)

      Pursuant to cl 29(8) of Schedule 5 to the CAT Act, until the Tribunal reconsiders the case, the decision of the Council dated 14 July 2020 under appeal to the Tribunal (to suspend the registration of the respondent as a medical practitioner) is stayed, subject to the respondent complying with the conditions imposed by the Tribunal on 8 February 2021; and

   6. (6)

      Each party pay its own costs of the appeal proceedings.

Issues

1. [17]

   There are three issues to be determined. First, whether the concession made by Dr Smithson should be accepted. Secondly, whether the jointly proposed orders can and, if so, should be made. Thirdly, whether it is desirable for this Court to address the remaining grounds of appeal.

2. [18]

   We have concluded that the concession of error made by Dr Smithson was correctly made and should be accepted. Secondly, the proposed orders can, and with some modifications which we raised with the parties at the hearing, should be made. Notwithstanding some initial doubts about the Court’s power to make proposed order 5, we are satisfied that the Court has power to stay the decision of the Tribunal on terms. Those terms, proffered by consent, are identical to those imposed by the Tribunal. To be clear, the orders are made as conditions of a stay granted by this Court. The conditions imposed will operate until the Tribunal makes orders in the remitted hearing, at which time the stay imposed by this Court will automatically lapse. An order in this form was discussed with the parties at the hearing of the appeal. The Court gave the parties the opportunity to make additional submissions about the proposed form of order 5. On 6 April 2021, in a note provided to the Court, the Council submitted that the form of order 5 should not be framed as being an action taken under the National Law. Dr Smithson submitted that he had no issue with proposed order 5 as formulated by the Court during oral argument. Accordingly, the Court will impose an order to the effect of that discussed in oral argument and described above.

3. [19]

   Thirdly, whilst the composition of the Tribunal on remitter will be a matter for the Tribunal itself, the possibility remains that the same Tribunal (or one or more members thereof) will be asked to consider the matter afresh. In those circumstances, we have decided that it is desirable to address the issues of law about which the Council complained, lest the fundamental problems with the Tribunal’s quashed decision be replicated. It should be emphasised that the issues raised in this Court are questions of law. In these reasons, we should not be understood as addressing the Tribunal’s assessment of the evidence or opining about any matter of fact which is controversial between the parties. The assessment of evidence will be a matter for the Tribunal on remitter.

Relevant legal principles

1. [20]

   As error has been conceded it is appropriate first to set out the principles applicable to the determination of an appeal under s 159. Those principles have been extensively discussed in recent decisions of this Court in Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303; [2020] NSWCA 122 and Kirby v Dental Council of NSW [2020] NSWCA 91. The most important are:

   1. (1)

      The role of the Tribunal in a s 159 appeal of the present kind is to apply s 150 standing in the shoes of the Council. The hearing is de novo and not limited to evidence before the Council. The legal standard to be applied is fixed by s 150: Kirby at [117]-[119]; Ghosh at [9].

   2. (2)

      The subject matter, scope and purpose of s 150 makes clear that it is a protective provision with two independent limbs. The touchstone for the exercise of the Council’s role under s 150(1) to make an order suspending the practitioner’s registration or imposing conditions on it is that the Council be satisfied that it is appropriate to do so for (i) the protection of the health or safety of any person or persons (the first limb), or (ii) that the action is otherwise in the public interest (the second limb): Kirby at [15]; Ghosh at [5]. The two limbs may overlap but the public interest is not subsumed in the first limb: see Pharmacy Council of NSW v Ibrahim [2020] NSWSC 708 at [35]. The two limbs are disjunctive; satisfaction of either will suffice to trigger the obligation imposed by s 150.

   3. (3)

      The proceedings are not disciplinary and are not necessarily referable to a complaint. The National Law otherwise makes provision for dealing with complaints against registered health practitioners: see Div 3 Subdivs 2-6. The function of a s 150 hearing is purely protective in character: Kirby at [15]; Ghosh at [5]. By s 150D, a Council must, after taking action under s 150(1) (except in the case of impairment), refer the matter to the Health Care Complaints Commission (“HCCC”) to be investigated as a complaint. By s 150F, in a case of impairment, the Council must consult with the HCCC to see if agreement can be reached as to whether the matter should be dealt with as a complaint or referred to an Impaired Registrants Panel: Ghosh at [3].

   4. (4)

      Principles relating to judicial review of administrative decisions are inappropriate to the exercise required by s 159. References by the Tribunal to the Council “taking into account irrelevant considerations” or references to the Wu Shan Liang [1] principle (in [84(2)] of the decision) are a distraction from the task the Tribunal is required to perform in a s 159 hearing.

   5. (5)

      Because the circumstances in which action under s 150 may be taken include that there may be a continuing dispute as to the relevant facts and that investigations into complaints concerning the practitioner by bodies such as the HCCC may not have been completed or even commenced, the Tribunal is not required to make conclusive findings of fact based on the material before it. The s 159 hearing does not involve determination of the merits of a claim: Kirby at [14], [139]; Ghosh at [9].

   6. (6)

      The role of the Tribunal is to make an assessment of the evidence and determine whether it is satisfied that it is appropriate to make one of the orders referred to in s 150(1). The s 159 hearing is not the occasion to consider, let alone determine, whether a practitioner is currently a fit and proper person to carry on the role: Ghosh at [9].

   7. (7)

      The “protection of the health and safety of any person or persons” does not require there be actual harm suffered by any person. Because s 150 is concerned with protection, it is sufficient if it can be demonstrated that there is a potential for harm: Ghosh at [9]. The Tribunal’s role in this case was to make an assessment of the evidence and determine whether it was appropriate, on either of the bases for which s 150 provides, that an order be made under s 150 for the protection of the health or safety of any person or persons or otherwise in the public interest.

   8. (8)

      As s 150 is a protective provision, it is appropriate ordinarily for the Tribunal, in deciding whether it is satisfied that it is appropriate to make an order under the first or second limb, to make an assessment about the nature and degree of risk to the health or safety of any person or persons or to the public interest (in the sense of the chance of the suggested harm being realised) and the consequences of the suggested harm being realised (in the sense of the seriousness of the harm that will ensue if the risk is realised): see X v The Commonwealth (1999) 200 CLR 177; [1999] HCA 63 at [41], which addresses risk in a different context. Reaching that state of satisfaction involves the Tribunal making an assessment of all of the evidence before it.

   9. (9)

      The essential question which the proper conduct of a s 159 hearing de novo requires the Tribunal to address is whether allowing the medical professional to practise, or to practise with certain conditions, involves an unacceptable risk to the health and safety of the public, or otherwise involves an unacceptable risk to the public interest: Ghosh at [103].

Consideration

1. [21]

   Grounds 1 and 5 should be addressed together. As will appear below, fundamental errors were made by the Tribunal. The Tribunal was required to undertake a de novo hearing of the issue posed by s 150: National Law, ss 159(1)(a) and 159(3); Kirby at [117]-[119]; Ghosh at [9]. The Tribunal was required, standing in the shoes of the Council, itself to apply the legal standard established by s 150.

2. [22]

   The references by the Tribunal to what it described as the absence of a “legalistic standard” in s 159 were misconceived. The standard to be applied by the Tribunal was that prescribed by the National Law in s 150.

3. [23]

   The identification by the Tribunal of the relevant legal principles to be applied was incorrect. Dr Smithson accepted that the Tribunal erred when it said, at the outset of its consideration of legal principles, that:

4. [24]

   Determination of whether Dr Smithson had proven that he was currently a fit and proper person formed no part of the function of the Tribunal in this case. We do not accept Dr Smithson’s submission that the Tribunal thereafter applied the correct test; that posed by s 150.

5. [25]

   In its summary of the issues “to be considered on a section 159C appeal”, the Tribunal referred to s 150 but apparently on the basis that this was a test applying to the Council and not the Tribunal itself. This is demonstrated by the repeated and puzzling references to the absence in the National Law of a “legalistic standard” to be applied: at [84(1)]. In making dispositive “Findings” at [85]-[86] set out above, the Tribunal did not make any finding by reference to the language in s 150 or any finding addressed to the matters required to be taken into account by s 150.

6. [26]

   The language used by the Tribunal in [85] conveys that it considered that it was not possible to determine positively, one way or the other, whether the drug test results were the consequence of consumption of illicit drugs or not (and that such a determination was part of its function). That assessment of the facts at [85] was not a matter before us and we express no view about its correctness.

7. [27]

   On the basis of what the Tribunal described as its “finding” at [85], however, the Tribunal concluded, “[h]aving made such a finding, it follows that the decision of the Medical Council must be set aside”: at [86]. Assuming that the Tribunal was entitled to make the “finding” that it could not determine positively whether Dr Smithson’s test results resulted from a consumption of illicit drugs, it was an error to reason that “it follows” from that finding that the Council decision “must be set aside”. To the contrary, the Tribunal was required to consider whether, on the evidence before it, it was satisfied that an order under s 150 was appropriate.

8. [28]

   The Tribunal was required itself to address the first limb of the s 150 test, protection of public health and safety, and to consider other matters of public interest posed by the second limb, which includes the need to maintain public confidence in the scheme of regulating medical practitioners and the need for practitioners to exhibit traits consistent with the practice of the medical profession. The Tribunal did neither.

9. [29]

   Absent Dr Smithson’s concession about ground 5, we would have set the Tribunal’s decision aside on ground 1 of the appeal.

10. [30]

    As we have said, it was an error by the Tribunal to approach its task by seeking to determine whether or not Dr Smithson was “now a ‘fit and proper person’ to be registered as a medical practitioner”. That question may fall to be addressed at a later stage, if disciplinary proceedings are taken against Dr Smithson: Ghosh at [9].

11. [31]

    We accept the Council’s submission that the Tribunal was labouring under a misapprehension about the task that it was undertaking. An entirely different task is required when re-exercising the protective jurisdiction afforded by s 150 of the National Law.

12. [32]

    Absent Dr Smithson’s concession about ground 5, we would have set the Tribunal’s decision aside on this additional basis.

13. [33]

    Whilst the Tribunal (at [84(4)]) recognised the fact that decisions of the Council do not involve the determination of the merits of a matter raised in connection with s 150, in exercising its function, in the shoes of the Council, the Tribunal did precisely that. The Tribunal made a “finding” at [85] that it concluded at [86] necessitated the setting aside of the Council’s decision.

14. [34]

    We accept the Council’s submission that the Tribunal misunderstood its statutory task by proceeding on the basis that it was part of its statutory role to make a determination of the merits about the underlying issue of Dr Smithson’s consumption of illicit drugs. That is demonstrated by the conclusion at [86] where the Tribunal records that as a result of what it characterises as its “finding” about Dr Smithson’s drug taking, the decision of the Council must be set aside. The Tribunal was required to make an assessment of the evidence and determine whether it was satisfied that it was appropriate to make one of the orders contemplated by s 150 for either of the reasons in the first or the second limb of the section. The essential question which the proper conduct of a s 150 hearing de novo required the Tribunal to address was whether allowing the medical professional to practise, or to practise with certain conditions, involved an unacceptable risk to the health and safety of the public, or otherwise involved an unacceptable risk to the public interest. This the Tribunal did not do.

15. [35]

    We think it likely that the Council is correct to submit that the Briginshaw standard does not apply in proceedings under s 159 of the National Law. In Pharmacy Council of NSW v Ibrahim [2020] NSWSC 708 Harrison AsJ said:

16. [36]

    Dr Smithson correctly points out, however, that the passage in which Briginshaw is referred to by the Tribunal appears to be addressed to him. The reference to Briginshaw by the Tribunal is both confused and confusing. We therefore think it appropriate to address the application of Briginshaw in the s 150 context in a case where the application of the test is clear.

17. [37]

    In so concluding we wish to make it clear that regardless of whether the Briginshaw standard was applied, it was an error of the Tribunal in this case to embark upon a consideration of whether the drug test results indicated positively that they had resulted from the consumption of illicit drugs (at [85]). We have said enough to make clear that any assessment of the evidence before it did not involve the Tribunal in making a determination of the merits of a claim.

18. [38]

    Absent Dr Smithson’s concession about ground 5, we would have set the Tribunal’s decision aside on this additional basis.

19. [39]

    The Council is correct to submit that the Tribunal misconstrued its statutory task by proceeding on the basis that it was part of its role to correct legal, or other, error in the decision-making of the Council. In fairness, the Tribunal may have been led down this path by Dr Smithson’s application which was addressed in familiar judicial review terms. That the Tribunal proceeded, at least in part, on the misapprehension that it was conducting a review of the Council’s decision is clear from the references to Wu Shan Liang and Collector of Customs v Pozzolanic [1992] FCA 897; (1992) 16 AAR 481 which are explicable only on that basis. [2]

20. [40]

    Little turns on this ground for present purposes, other than to make it clear that upon remitter the Tribunal is required to conduct a de novo hearing. It is an irrelevant distraction to scrutinise the reasons of the Council to discern error.

21. [41]

    A pervasive error in the Tribunal’s reasons is the characterisation of the decision made by the Council under s 150 as a “disciplinary action” (at [83]). It was not. Section 150 “is not a professional disciplinary power, but purely protective”: Kirby at [15].

22. [42]

    Disciplinary proceedings are dealt with separately by other provisions of the National Law. To the same effect, the Tribunal stated that the Council had “delegated its power to investigate complaints” against Dr Smithson to the three delegates who made the s 150 decision on behalf of the Council. The Council was not “investigating” a “complaint” against Dr Smithson. That is a separate task to be undertaken by the HCCC.

Conclusion and orders

1. [43]

   For the foregoing reasons the decision of the Tribunal must be quashed. We have concluded that the constitution of the Tribunal on remitter should be a matter for it for essentially the reasons expressed by three members of the High Court in Mann v Paterson Constructions Pty Ltd [2019] HCA 32; (2019) 93 ALJR 1164 at [219].

2. [44]

   The orders of the Court are:

   1. (1)

      Leave to appeal granted to the extent that leave is necessary;

   2. (2)

      The appeal is allowed;

   3. (3)

      The decision of the New South Wales Civil and Administrative Tribunal of 8 February 2021 ([2021] NSWCATOD 17) is quashed;

   4. (4)

      The case is remitted to the New South Wales Civil and Administrative Tribunal for hearing in accordance with these reasons;

   5. (5)

      Pursuant to cl 29(8) of Schedule 5 to the Civil and Administrative Tribunal Act 2013 (NSW), until the Tribunal makes orders after the hearing referred to in order 4, the decision of the Medical Council of New South Wales under appeal to suspend the registration of the respondent as a medical practitioner is stayed, subject to the respondent complying with the conditions upon which that stay is granted which conditions are recorded in Annexure A to these reasons;

   6. (6)

      Grant liberty to apply to the Court by email to the chambers of Payne JA on 3 days’ notice for the lifting of the stay if the Council alleges that a condition of the stay has been breached by the appellant;

   7. (7)

      Upon the making of orders by the Tribunal after the hearing referred to in order 4, the stay granted in order 5 is automatically discharged without further order of this Court; and

   8. (8)

      Each party pay its own costs of the appeal proceedings.