Colquhoun v Health Care Complaints Commission

1. [1]

   HER HONOUR: This is an appeal against a decision of the Psychology Tribunal of New South Wales in disciplinary proceedings brought against a psychologist. The disciplinary proceedings were determined on 5 December 2012: Health Care Complaints Commission v R Colquhoun [2012] NSW PST 7. The decision determined two complaints against the respondent psychologist, Ross Colquhoun, arising out of his provision of rapid opiate detoxification treatment to two patients who sought treatment for drug addiction at a clinic operated by him under the name “Psych ‘n’ Soul”.

2. [2]

   The Tribunal recorded its understanding that the respondent is entitled to use the title “Doctor” by reason of the fact that he completed a degree of Doctor of Health Science at Deakin University in 2009. Although that is contrary to my understanding of the traditional use of that title, I do not have any independent basis for rejecting the position stated by the Tribunal and, for the sake of consistency, have accordingly adopted it.

3. [3]

   The appeal is brought under s 162(1) of the Health Practitioner Regulation National Law (NSW), which provides:

4. [4]

   Part 8 Div 7 of the National Law, comprising (including s 162), was repealed in 2013 by the Civil and Administrative Legislation (Repeal and Amendment) Act 2013 (NSW) which established the Civil and Administrative Tribunal of New South Wales. However, the power to hear and determine the present appeal pursuant to s 162 is preserved: Civil and Administrative Tribunal Act 2013 No 2 (NSW), sch 1, cl 8.

5. [5]

   Section 162 makes plain that an appeal against “a decision of the Tribunal” is confined to a point of law. The scope of an appeal against “the exercise of a power” by the Tribunal may be broader – it will be necessary to return to that issue.

6. [6]

   The determination of the present appeal was complicated by the confusing and organic development of the grounds of appeal. Many of the grounds transparently canvass the merits of the Tribunal’s decision as to whether the complaints were proved, without identifying any point of law. That is not a course permitted under s 162. The original summons, filed on 24 December 2012, identified no grounds of appeal. The summons was amended twice during the following year, once evidently with the benefit of legal advice and once without. The second amended summons, filed in November 2013, articulated 19 grounds of appeal. Some were abandoned during the hearing of the appeal but more were added. The final version of the originating process was the third further amended summons filed on 16 May 2014, the third day of hearing of the appeal. That version maintains 17 grounds of appeal.

7. [7]

   Dr Colquhoun filed four sets of written submissions in advance of the hearing, totalling 114 pages. Two were written by him and two were written by different barristers (submissions by Margaret Bateman, filed 19 September 2013; submissions by Dr Colquhoun, filed 2 December 2013; submissions by Dr Colquhoun, filed 20 February 2014 and submissions by Jonathan Cohen, filed 2 May 2014). The first three sets of submissions entailed a large measure of duplication but some points of difference. Mr Cohen, who appeared for Dr Colquhoun at the hearing of the appeal, maintained reliance upon all four documents. However, he addressed some of the grounds in a manner which I apprehend differed considerably from the legal argument sought to be put by Ms Bateman in her written submissions. There was no single document addressing the final grounds of appeal. Some short further submissions were provided during the hearing after the summons was amended (from Mr Cohen, incorrectly dated 3 May 2014, and from the HCCC dated 22 May 2014). At no point did Mr Cohen identify parts of the earlier material that could be disregarded following the amendment.

8. [8]

   The HCCC’s written submissions, filed 25 March 2014, summarised Dr Colquhoun’s grounds in five categories. Mr Cohen did not accede to my suggestion that he address the grounds in the same way. The summons was amended twice after those written submissions were prepared. The classification suggested by the HCCC nonetheless remained helpful to a degree and, accordingly, I have broadly adopted the same approach. However, it has been necessary to take care in that process also to address any further points raised on behalf of Dr Colquhoun, to the extent that I have been able to discern them.

Circumstances of the complaints

1. [9]

   The following summary is drawn from the Tribunal’s decision. Dr Colquhoun was aged 61 years at the time of the decision. He completed his psychology degree in 1995. In 1996, he became the clinical director of a drug rehabilitation service operated by a company of which he was the managing director. In 1998, he designed and implemented a program for use of the drug Naltrexone to provide rapid opiate detoxification for opiate addicts. At the time of the events giving rise to the complaints, he was operating a clinic in Ultimo under the name “Psych ‘n’ Soul”. He was the owner of that business. The clinic employed staff including Dr Colquhoun, other psychologists, drug and alcohol counsellors, nurses and part-time medical general practitioners who carried out medical assessments and supervised the administration of Naltrexone to patients, either by tablets or implants.

2. [10]

   The Tribunal’s decision records that rapid opiate detoxification treatment is not provided in any public hospital. It appears that, at the time of the Tribunal’s decision, the Psych ‘n’ Soul Clinic was the only establishment providing that treatment in Australia apart from one facility in Western Australia. The treatment entails accelerated detoxification from opiate dependence precipitated by the use of Naltrexone. It involves serious risks for the patient.

3. [11]

   In January 2005, the New South Wales Department of Health published guidelines for rapid detoxification from opioids. Those guidelines governed the treatment offered at the clinic.

4. [12]

   The complaints against Dr Colquhoun related to two patients, referred to in the proceedings as Patient A and Patient B. Patient A first attended the clinic with his father on 2 May 2007. Dr Colquhoun recommended rapid opiate detoxification with a 12-month implant of Naltrexone. The price of the treatment was $5,900. At the time he approached the clinic, Patient A was on a methadone programme but was also using 0.2 grams of heroin per day. He was medically assessed by one of the general practitioners employed by the clinic, who conducted a number of tests. A urine test detected methamphetamine and morphine. The patient had denied taking amphetamines and had not disclosed his use of methamphetamines.

5. [13]

   Patient A received his rapid opiate detoxification treatment on 16 May 2007. His father attended to collect him at 5pm that day but was told that he was not ready to be discharged. He was still not ready to be discharged at 6pm. The father returned with the patient’s mother at about 6.30pm. At that time, they were told that they had to take the patient, as the clinic had no facilities and no nursing staff to care for him overnight. The parents had difficulty getting him into their car. The father described him as being “out of control” and not responsive to any directions given to him. Once in the car he became extremely agitated. During the drive home, he attempted to exit the car while it was moving. Once at home, the patient began jumping up and banging the wall and running at furniture and at the walls. The patient’s mother made three phone calls to Dr Colquhoun. In the first, he told her to give the patient more time and he should settle down. In the second call, he suggested giving the drugs in the kit provided. Finally, in the third call, he suggested that they call an ambulance, which they did. The patient was admitted to Prince of Wales Hospital where he was treated in intensive care. It took two ambulance officers to manage him. He spent two days in intensive care.

6. [14]

   Patient B approached the clinic in early 2008. He was a freelance journalist. Dr Colquhoun agreed to charge him only $1,500 for rapid opiate detoxification treatment on the understanding that he would write positive articles about the treatment if it was successful. No carer or support person attended the clinic on the day of his treatment. He remained at the clinic overnight following his treatment. The next morning, Dr Colquhoun drove the patient to a boarding house, where he was staying alone, and left him outside. Patient B was found two days later, unconscious in his room at the boarding house. He was conveyed by ambulance to the Prince of Wales Hospital and treated in intensive care. He died in the intensive care unit almost three weeks later after suffering a subarachnoid haemorrhage. It was not suggested that the subarachnoid haemorrhage was caused by Dr Colquhoun’s treatment.

7. [15]

   A complaint to the Health Care Complaints Commissions was initiated by the Prince of Wales Hospital. The letter referring the complaint noted the Hospital’s concerns arising from the practice at the Psych ‘n’ Soul Clinic, stating:

Grounds of complaint

1. [16]

   Following an investigation into the adequacy of Dr Colquhoun’s assessment of the suitability of Patient A and Patient B for rapid opiate detoxification treatment, disciplinary proceedings were instituted alleging two complaints. The complaint concerning Patient A was in the following terms:

2. [17]

   The complaint concerning Patient B was in the following terms:

3. [18]

   The Tribunal found all particulars of both complaints proved. It found that, together, the conduct was of a sufficiently serious nature to justify cancellation of the practitioner’s registration and, accordingly, that the conduct amounted to professional misconduct: at [342]. The Tribunal cancelled the practitioner’s registration and prohibited him from providing nominated health services.

Grounds directed to the sufficiency of the evidence

1. [19]

   The grounds addressed by the HCCC as falling within this category are grounds 1, 2, 4, 10, 12 and 21. I have also addressed grounds 13 and 20 under this heading, since they are related to the arguments put (ground 20 is related to an argument put in respect of grounds 1 and 2; ground 13 is related to ground 12).

2. [20]

   It is convenient to consider grounds 1 and 2 together. Ground 1 (relating to the Tribunal’s determination of the complaint concerning Patient A) is:

3. [21]

   Ground 2 (relating to the Tribunal’s determination of the complaint concerning Patient B) is:

4. [22]

   The precise nature of the complaint sought to be made under those grounds was elusive. As already indicated, I apprehend the lack of coherence in the various arguments put was due to the fact that the grounds were drafted (and argued in writing) by one barrister but developed in oral submissions by another.

5. [23]

   Both grounds were originally directed only to select particulars in the complaint (particulars 3.1 to 4.2, 7.1 and 8.1 regarding Patient A and particulars 1.1 to 4.2, 7.1 and 10.1 regarding Patient B). The submissions prepared by Ms Bateman addressed only those particulars under that head (pages 6 to 18 regarding Patient A and pages 18 to 23 regarding Patient B; and see Dr Colquhoun’s submissions filed 2 December 2013 at pages 2 to 10, paras 2.1 to 2.2). At a time when he was evidently self-represented in the appeal, Dr Colquhoun expanded the grounds to all of the particulars regarding Patient A and all but particular 8.1 regarding Patient B (see Dr Colquhoun’s submissions filed 20 February 2014 at pages 2 to 12, paras 2.1 to 2.2).

6. [24]

   The HCCC submitted that, although characterised as an error in law, the error identified in grounds 1 and 2 does no more than to canvass the merits of the Tribunal’s decision. Plainly, there is force in that submission. The burden of the complaint is that, in reaching its conclusion that the conduct found proved amounted to professional misconduct, the Tribunal gave insufficient weight to various facts. Although that complaint is ostensibly directed to the evaluative judgment whether the impugned conduct amounts to professional misconduct, the substance of the ground, upon analysis, takes issue with the underlying findings of fact.

7. [25]

   The HCCC submitted that the weight given to the facts identified does not involve a question of law, citing the judgment of Brennan J (as his Honour then was) in Repatriation Commission v O’Brien [1985] HCA 10; 155 CLR 422 at [2] (his Honour was in turn citing the decision of the Full Court of the Federal Court (Fox, Deane and Morling JJ) in Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598 at 601).

8. [26]

   The HCCC further noted that the evaluative conclusions in question entailed judgments on matters invoking professional standards, such as whether Dr Colquhoun “adequately” assessed each patient’s “suitability” for rapid opiate detoxification (particular 1.1); whether he took “sufficient” account of pre-existing conditions (particular 1.1(a)); whether he ensured that a “full” psychological or psychiatric assessment was undertaken (particular 1.1(b)) and whether he “adequately” discussed the treatment plan (particular 3.1).

9. [27]

   Particular 1.2 in each case alleged that the conduct in 1.1 breached certain requirements of the Australian Psychological Society Code of Ethics (set out at [173] and [174] of the Tribunal’s decision). Those requirements in turn entailed evaluative professional judgments, such as whether the psychologist’s services were used “appropriately” and whether assessment procedures were administered “appropriately”.

10. [28]

    This is not a case in which it is suggested that there was no evidence at all to support the findings made. Rather, the argument invited this Court to consider the facts identified in each ground with a view to re-determining matters determined by the Tribunal. It is not suggested that the Tribunal did not have regard to those facts. As noted in the HCCC’s written submissions at para 4.8, all of the facts and conclusions identified in ground 1 were put to the Tribunal by Dr Colquhoun.

11. [29]

    To illustrate the nature of the task the Court is invited to embark upon, ground 1(a) alleges that insufficient weight was given to various aspects of Dr Colquhoun’s evidence concerning discussions of the proposed treatment with Patient A, including the fact that he signed a Treatment Agreement. One of the facts relied upon in ground 1(a) is that, in reaching its conclusion as to particulars 1.1 to 3.2, the Tribunal gave insufficient weight to the fact that Dr Colquhoun also provided Patient A with a document headed “Consent for Slow Release Naltrexone”. The Tribunal had regard to that document, finding that it made “some of the required disclosures”: at [187]. Ground 1(a) relies on that finding and, at the same time, asserts that the Tribunal gave insufficient weight to that fact. But the argument overlooks the fact that the Tribunal continued “but there is no document or documents of the Clinic in evidence that makes all of the disclosures under these requirements”.

12. [30]

    The Tribunal accepted that Dr Colquhoun “may have, as he alleges, read the whole of the Treatment Agreement to the patient before it was signed”: at [186]. However, the Tribunal held that the contents of that agreement did not provide a full explanation of the nature of the treatment, what was to be expected and the potential risks and benefits of the treatment.

13. [31]

    The Tribunal dealt with Dr Colquhoun’s evidence on that issue at [188] to [189] of the decision. The Tribunal noted that, in his affidavit, Dr Colquhoun said:

14. [32]

    The Tribunal considered that evidence to be misleading, noting that the father had not signed the agreement as a witness to the explanation of the treatment. He signed it two days later, as a support person. That is just one illustration of the difficulty. These grounds, as amended by Dr Colquhoun, transparently seek review of the findings of fact made by the Tribunal. That is not a course permitted in an appeal under s 162.

15. [33]

    The formulation of grounds 1 and 2 characterises that task as raising a point of law by contending that, by giving insufficient weight to the identified facts, the Tribunal “erred in law in its interpretation and application of s 139E of the National Law”. Section 139E of the National Law is the provision which defines “professional misconduct”, as follows:

16. [34]

    In terms, grounds 1 and 2 allege error in the interpretation and application of that definition. That proposition grew organically during the hearing of the appeal. On the first day of the hearing, it was suggested that grounds 1 and 2 might be recast as failures to take relevant considerations into account (T34.35). However, in the amendment that followed, that change was not made. It was at one point suggested that the grounds would be recast to allege Wednesbury unreasonableness but that also did not occur.

17. [35]

    The issue was revisited on the second day (the Court having adjourned early on day one at Mr Cohen’s request to allow additional time for him to reconsider some grounds). At that stage, Mr Cohen sought to recast grounds 1 and 2 as a contention that the Tribunal erred in law in finding that the breaches amounted to professional misconduct “full stop”, implicitly abandoning the particulars of matters to which insufficient weight was given (T62.43). However, subject to one point raised later in oral submissions, it was not suggested that the Tribunal asked the wrong question or applied the wrong test. It was simply contended that the conclusion was wrong.

18. [36]

    The point later raised was that the Tribunal applied the wrong test when it said at [342]:

19. [37]

    Mr Cohen submitted that the use of the word “might” revealed the application of the wrong test. He said:

20. [38]

    I do not accept that the language of the decision reveals error in that respect. In my view, the submission proceeds on a grammatical misconception. To say that conduct is of a sufficiently serious nature to justify cancellation is to characterise it as conduct such as might justify cancellation. Each form of expression articulates the same test.

21. [39]

    In my view, subject to what follows, the characterisation of grounds 1 and 2 as error in the decision in point of law is misconceived.

22. [40]

    It is, however, necessary to deal with one further point. In her written submissions, Ms Bateman relied on the decision of the Court of Appeal in Prakash v Health Care Complaints Commission [2006] NSWCA 153 and the decision of the High Court in House v The King (1936) 55 CLR 499 at 504-5. No point reference was provided for the decision in Prakash.

23. [41]

    Those decisions were repeatedly cited in footnotes by Ms Bateman every time the submission was made that “the Tribunal, in coming to the conclusion that the failure articulated in [a specified particular] was so egregious as to amount (either alone or together with other failures) to professional misconduct, erred in law by giving insufficient weight to [a particular fact]”. The footnotes also made reference to the application of those authorities in the decision of Fullerton J in Donnelly v Health Care Complaints Commission [2011] NSWSC 705 (again, no point reference was provided but the relevant discussion appears at [145]-[167]).

24. [42]

    Mr Cohen did not take me to the decision in Prakash but submitted that it is authority for the proposition that “where there's issues of professional misconduct and unsatisfactory conduct it is a ground to say that improper weight has been not given or given to a matter or that a material fact has not been taken into account”. He later referred to Prakash at [64] (in the judgment of Santow JA). It was in that context that Mr Cohen foreshadowed an amendment to grounds 1 and 2 so as to allege failure to take into account a relevant consideration rather than giving insufficient weight to various facts.

25. [43]

    On my reading of the decision in Prakash, I think Ms Bateman’s intention must have been to rely on the separate judgment of Basten JA rather than the judgment of Santow JA (with whom Tobias JA agreed). Basten JA did not dissent in the result but neither of the other members of the bench commented on his judgment. It provides an important and useful analysis (which has often been accepted and may now be regarded as uncontroversial) of the scope of an appeal under the predecessor to s 162 (s 90 of the Medical Practice Act 1992 (NSW), which is, relevantly, in the same terms as s 162).

26. [44]

    Importantly for present purposes, Basten JA expressed the view that, while an appeal under the first limb of the section is confined to a decision in point of law, a challenge to the making of a disciplinary order is “not so limited”: at [83]. His Honour noted that the exercise of power constituted by the making of a disciplinary order is discretionary and that, to challenge such an order, an appellant must identify an error of the kind specified in House v The King. But his Honour also observed that, even so constrained, an appeal against a disciplinary order is likely to permit a wider scope of review than contained in the first limb of the section: at [85] and [89].

27. [45]

    Basten JA continued at [89] (emphasis added):

28. [46]

    In accordance with that analysis, it will be necessary to return to the challenge evidently sought to be made to the exercise of the Tribunal’s power after first determining whether there is any successful challenge to the findings that the complaints have been proved. I return to that issue under ground 25, at the conclusion of this judgment.

29. [47]

    There was one further point addressed by Mr Cohen in the context of grounds 1 and 2, described as the issue of consent (T71.24). The argument was related to a contention, repeated in a number of contexts, that the Tribunal applied the wrong standard when assessing Dr Colquhoun’s conduct, holding him to requirements that can only be met by a medical practitioner and which he contends formed no part of his obligation as a psychologist.

30. [48]

    A similar point was raised by ground 20, which is:

31. [49]

    Mr Cohen’s argument about the issue of consent related to the Tribunal’s consideration of particulars 3.1 and 3.2 of the complaint in relation to Patient B, which alleged failure adequately to discuss the treatment plan “and/or” failure to record such discussions. Those failures were said to amount to a breach of the relevant NSW Health Guidelines and of ethical standards A.3.3 (a) and (b) of the Australian Psychological Society Code of Ethics 2007. In considering those allegations, the Tribunal discussed the importance of ensuring that any consent obtained from a patient is “properly informed”: at [248].

32. [50]

    At [251] of the decision, the Tribunal said:

33. [51]

    Mr Cohen submitted that those remarks were misguided because the task of obtaining informed consent to the administration of Naltrexone (a prescription drug) must necessarily fall to the registered medical practitioner who administers the drug and could not be an obligation of a psychologist in the role of Dr Colquhoun. He submitted that the suggestion that there could be any liability flowing to Dr Colquhoun revealed error and that the error “infects the entire judgment” (T71.24).

34. [52]

    The submission misconceived what was said by the Tribunal. Mr Cohen submitted that the Tribunal had said Dr Colquhoun’s conduct in not obtaining informed consent “may well be criminal” (T71.30). The Tribunal did not refer to criminal liability but only to liability for damages for assault, which is a civil liability. In any event, the view that, in the absence of informed consent, Dr Colquhoun could be liable for damages does not appear to me to have been central to the Tribunal’s reasoning. The critical issue was the content of the professional obligations referred to in the particulars of complaint (the NSW Health Guidelines for Rapid Detoxification from Opioids and ethical standards A.3.3 (a) and (b) of the APS Code of Ethics 2007).

35. [53]

    The relevant parts of the NSW Health Guidelines are set out in the Tribunal’s decision at [43] and following. One of the stated objectives of the guidelines is “to assist trained D & A clinical staff…to obtain informed consent to treatment.” The premise of Mr Cohen’s argument was that, since Naltrexone is a prescription drug, the psychologist could play no role in obtaining informed consent. The argument would hold that the whole of the task of assessing a patient’s suitability for, and obtaining informed consent to, rapid detoxification treatment at the clinic owned and operated by Dr Colquhoun had to be undertaken by the medical practitioner (Dr Tan in the case of Patient A and Dr Daood in the case of Patient B).

36. [54]

    That premise is comprehensively rejected in the Tribunal’s decision. The Tribunal must have considered Dr Colquhoun to fall within the description of “trained D & A clinical staff” referred to in the Guidelines and has clearly judged it to be an aspect of his professional obligation to obtain informed consent to the treatment offered by his clinic.

37. [55]

    The ethical standards published by the APS (exhibit A, volume 3, tab 49) support the correctness of that approach. Ethical standard A.3.1. states:

38. [56]

    The standards identified in the particulars of the complaint explain that psychologists ensure consent is informed by:

39. [57]

    The argument put forward on behalf of Dr Colquhoun appears to deny that the services offered at the Psych ‘n’ Soul Clinic amounted to psychological services. If rapid opiate detoxification treatment were nothing more than the administration of a prescribed drug by a medical practitioner, there would be no need for the establishment of a specialised clinic of the kind operated by Dr Colquhoun. Undoubtedly, the relevant medical practitioner had a simultaneous duty to obtain informed consent (or ensure that it had been obtained) before prescribing and administering the drug but that does not derogate from the proposition that the psychologist who ran the clinic also had a duty of that kind. The precise content of the duty of each different practitioner would not necessarily coincide. It is surely a matter for the specialised Tribunal to determine the content of those obligations insofar as they fell to the psychologist. I am not persuaded that there is any merit in the argument that the Tribunal applied the wrong test in assessing Dr Colquhoun’s conduct.

40. [58]

    It follows, in my view, that this aspect of grounds 1 and 2, and ground 20, must be rejected.

41. [59]

    Ground 21 is:

42. [60]

    Dr Colquhoun’s written submissions did not expand upon this ground. The HCCC responded that it could not know the case it had to answer and, accordingly, that ground 21 should be dismissed, citing McGuirk v University of New South Wales [2009] NSWSC 1424 at [21] to [23].

43. [61]

    In oral submissions, Mr Cohen explained the alleged error relating to obtaining informed consent under the rubric of grounds 1 and 2. He accepted that ground 21 repeats the same complaint (T79.26).

44. [62]

    For the reasons already explained in dealing with grounds 1 and 2, ground 21 must be rejected.

45. [63]

    Ground 4 is:

46. [64]

    The purpose of the reference to the Tribunal’s decision at [342] is unclear. That paragraph does not address the issue of preferring commercial interests to the patient’s need for safety. At [349] to [350], the Tribunal said:

47. [65]

    This ground was addressed in Dr Colquhoun’s second submissions at para 2.4, pages 13 to 15. As with grounds 1 and 2, the effect of those submissions is to canvass factual issues determined by the Tribunal. Dr Colquhoun noted that there was evidence to the contrary (of the Tribunal’s finding) from Ms De Salis, who said “I am also aware of the financial sacrifices he makes to continue in this work”. That evidence did not, as a matter of law, preclude the Tribunal from drawing the inference it did.

48. [66]

    Dr Colquhoun also relied on evidence to the effect that his practice was deliberately structured so as to ensure that the final decision as to the suitability of a patient to undergo rapid opiate detoxification fell to the medical practitioners engaged at the clinic and was not amenable to interference by Dr Colquhoun as the owner of the clinic. He cited evidence from the two doctors confirming their role in the assessment of suitability from a medical perspective (as opposed to the psychological aspect of the assessment). In my view, it was nonetheless open to the Tribunal to have regard to the potential conflict between the commercial interests of the practice and the interests of the patients. As submitted by the HCCC, the finding at [349] was an inferential finding which was available on the evidence. In my view, it was open to the Tribunal to infer that, in the case of Patients A and B, the patients’ interests were not given adequate priority in the context of the potential conflict of interest identified.

49. [67]

    Ground 4 must be rejected.

50. [68]

    Grounds 5, 6, 7, 8 and 9 were abandoned. Ground 10 is:

51. [69]

    At [350] to [351], the Tribunal said:

52. [70]

    This ground was not addressed separately but was said to flow from the errors identified in grounds 3 to 8 (it was probably intended also to include reference to ground 9): see Dr Colquhoun’s first and second submissions at para 2.10. Ground 10 was pressed notwithstanding the abandonment of five of those grounds (grounds 5 to 9).

53. [71]

    The formulation of ground 10 paraphrases the words of the Tribunal. The Tribunal did not find that Dr Colquhoun “lacked ethics and was without integrity”. The Tribunal said that the complaints, as established, reflected extremely badly on his ethics and his integrity. That characterisation of the conduct the Tribunal had found to be established was made in the context of the Tribunal’s explanation of its conclusion as to the orders that should be made. It was a step in the reasoning rather than a discrete finding of fact. Having regard to the findings on which that reasoning was based, it is a characterisation which, in my view, although harsh, was open; it could not be said to be legally wrong. Ground 10 must be rejected.

54. [72]

    Ground 11 was abandoned.

55. [73]

    Grounds 12 and 13 were addressed together by Mr Cohen, since each relates to the Tribunal’s treatment of the evidence of Professor Sitharthan. Ground 12 seeks to impugn the Tribunal’s alleged rejection of that evidence, while ground 13 asserts a failure to give reasons.

56. [74]

    Professor Sitharthan was the Honorary Professor in the Department of Psychiatry in the School of Medicine at the University of Sydney. He is a clinical psychologist. He was asked by the Psychology Council and by Dr Colquhoun to supervise Dr Colquhoun following the receipt of the complaints giving rise to the disciplinary proceedings. Since December 2011, he had had 12 sessions with Dr Colquhoun since December 2011 of approximately one hour, about once a fortnight. He said that, in those sessions, he was trying to find out about Dr Colquhoun’s current practices, where the deficiencies were and how they could be improved and to give Dr Colquhoun feedback. He said he was looking at Dr Colquhoun’s total practice as a psychologist, not confining his attention to the rapid opiate detoxification procedure (exhibit A, volume 2, court book page 430, transcript page 337).

57. [75]

    Professor Sitharthan did not charge Dr Colquhoun for his time, evidently taking the view that to do so would be inconsistent with the requirement of independence as a witness. He explained that he wanted to provide “a very independent and unbiased opinion” (court book page 472, transcript page 379.28).

58. [76]

    Dr Colquhoun cross-examined Professor Sitharthan argumentatively and at length (court book pages 443 to 470, transcript pages 350 to 377). The cross-examination concluded as follows:

59. [77]

    Ground 12 is:

60. [78]

    This ground raises no point of law. In terms, it directly challenges the Tribunal’s assessment of the evidence. As noted by the HCCC in its written submissions, the Tribunal is an expert tribunal which includes two psychologist members. Even supposing Dr Sitharthan’s evidence militated against the impugned finding (which I do not accept), the Tribunal is not obliged to accept the uncontested evidence of an expert witness. Still less is it an error in point of law for the Tribunal to have rejected the evidence of Dr Colquhoun. A consideration of the whole of Professor Sitharthan’s evidence reveals that, although the Professor was positive as to some aspects of Dr Colquhoun’s competence and ability, he also expressed reservations in some areas.

61. [79]

    Ground 12 must be rejected.

62. [80]

    Ground 13 is:

63. [81]

    During the hearing of the appeal, Mr Cohen was unable to identify the source of the quote “very competent” relied upon in that ground (T36.20-37.14).

64. [82]

    The source of the quote appears to be an exchange between Professor Sitharthan and one of the Tribunal members, Ms Taylor, following the conclusion of Dr Colquhoun’s cross-examination, as follows (at court book 473, transcript page 380.23, emphasis added):

65. [83]

    There was then a further exchange between Professor Sitharthan and another member of the Tribunal, Dr Tong, which concluded as follows (at court book 474, transcript page 381.33):

66. [84]

    The Tribunal summarised Professor Sitharthan’s evidence in considerable detail at [318] to [338]. Contrary to the suggestion contained in ground 13, the Tribunal does not appear to have rejected Professor Sitharthan’s evidence or considered it irrelevant to the determination as to the appropriate protective orders. The Tribunal expressly referred to the prospect of a period of supervision in its explanation as to the orders made. At [351] to [353] of the decision, the Tribunal said:

67. [85]

    As those paragraphs make plain, the Tribunal evidently reached its conclusion as to the appropriate orders accepting Professor Sitharthan’s evidence but nonetheless persuaded that the cancellation and prohibition orders were necessary. The reasons for that conclusion are adequately explained.

68. [86]

    In my view, ground 13 must be rejected.

Failure to give reasons

1. [87]

   Dr Colquhoun relies on further four grounds alleging failure to give reasons (grounds 3, 13, 14 and 15).

2. [88]

   The Tribunal has a statutory obligation to give reasons. Section 167F of the National Law provides:

3. [89]

   As submitted on behalf of the HCCC, a provision in those terms does not impose a requirement on the Tribunal to “draw out every conclusion of fact which it has made, assumed or subsumed in the course of arriving at and making its ultimate findings of fact”, nor to “spell out in terms each of these steps in the reasoning process”: Bannister v Walton (1993) 30 NSWLR 699 at 713G.

4. [90]

   Ground 3 (relating to both complaints) is:

5. [91]

   Neither Ms Bateman’s submissions nor Dr Colquhoun’s first submissions expanded upon this ground.

6. [92]

   In his second submissions, Dr Colquhoun addressed this ground at para 2.3, pages 12 to 13. Those submissions canvass the factual correctness of the conclusion rather than addressing any inadequacy in the reasons amounting to legal error. In particular, Dr Colquhoun contends that the evidence (in statements submitted to the Tribunal and from previous findings of the HCCC) established a pattern of behavior contrary to that found by the Tribunal. He submits that the pattern established was that he was a conscientious, honest and ethical practitioner. There appears to have been a body of evidence to that effect, but the assessment of that evidence in the context of the whole of the material before the Tribunal was a matter for the Tribunal. Upon analysis, ground 3 as argued by Dr Colquhoun in his written submissions does not raise a point of law. In the way in which it was put there, it must be rejected.

7. [93]

   In oral submissions, Mr Cohen addressed ground 3 under the rubric of grounds 1 and 2, in effect alleging that the reasons stated did not legally sustain the conclusion reached. On the basis that the point sought to be raised was comprehended within grounds 1 and 2, Mr Cohen indicated that ground 3 was not pressed (T52-53). However, it was later “reinstated” (T63.13), apparently still intended as an aspect of the argument that the Tribunal was wrong to conclude that the established conduct amounted to professional misconduct or else applied the wrong test (T69.20).

8. [94]

   In the absence of any focused analysis of the Tribunal’s reasons by reference to the relevant principles (helpfully summarised in the HCCC’s submissions at paras 6.1 to 6.7), the submissions in support of this ground have left me uncertain as to what is alleged to be lacking in the reasons stated by the Tribunal. In my view, the conclusion at [342] of the decision is adequately explained upon a fair reading of the whole of the reasons. Accordingly, I have concluded that, however it is put, ground 3 must be rejected.

9. [95]

   Ground 13 has been addressed above under the heading of the evidence grounds.

10. [96]

    Ground 14 is:

11. [97]

    This ground was also addressed as an aspect of the broader argument that the Tribunal did not adequately explain its conclusions that the established conduct amounted to professional misconduct and warranted a prohibition order (see Mr Cohen’s written submissions at paras 41 to 43). Dr Colquhoun’s written submissions did not expand the ground beyond setting out part of the evidence of Lyne De Salis.

12. [98]

    As already noted, the Tribunal was not required to draw out every conclusion of fact made, assumed or subsumed in the course of its reasoning. It was not required to refer to every piece of evidence. The Tribunal carefully explained its conclusion as to what outcome was required to protect the public at [343] to [361] of the decision.

13. [99]

    In my view, ground 14 must be dismissed.

14. [100]

    Ground 15 is:

15. [101]

    There is no merit in this ground. No attempt was made to address it by reference to any legal principle. As already noted, the Tribunal carefully explained its conclusion as to what outcome was required to protect the public at [343] to [361] of the decision. Ground 15 must be dismissed.

The two stages of the hearing: grounds 17, 26 and 27

1. [102]

   Ground 16 was abandoned.

2. [103]

   Ground 17 is:

3. [104]

   It is convenient also to address grounds 26 and 27 under this heading.

4. [105]

   Ground 26 is:

5. [106]

   Ground 27 is:

6. [107]

   The HCCC tendered a bundle of documents directed to the issues raised by those grounds (exhibit 2). It is necessary to consider that material in the context of two relevant decisions of the Court of Appeal.

7. [108]

   In King v Health Care Complaints Commission [2011] NSWCA 353, the Court of Appeal held that proceedings in the Health Care Complaints Tribunal should be conducted in two stages. The proceedings under appeal had been conducted in one stage, resulting in the publication of a single decision finding the complaint proved; concluding that the conduct proved amounted to professional misconduct and ordering that the practitioner be deregistered: see appeal judgment at [20]. The Court of Appeal held that, in such proceedings, there should be a second stage to allow the parties an opportunity to adduce evidence and make submissions after the Tribunal has “published its findings”: at [202] to [205] per Handley AJA; McColl JA agreeing at [1]; Macfarlan JA (otherwise in dissent) not deciding.

8. [109]

   The decision is silent as to whether that should include publication of reasons and a conclusion as to whether the conduct proved amounts to professional misconduct. However, in reaching the conclusion that there should be a second stage, Handley AJA cited with approval the remarks of Basten JA in Lucire Health Care Complaints Commission [2011] NSWCA 99 at [65]. Handley AJA recorded that Basten JA said the practitioner “should not have been required to address submissions to the Tribunal on the appropriate orders until the Tribunal had determined whether and in what respects her conduct constituted professional misconduct”. The full passage from the judgment of Basten JA is set out later in this judgment.

9. [110]

   Lucire was not a one-stage case. In that case, a disciplinary hearing which had taken longer than expected concluded on 13 August 2010, only two weeks before the commission of the presiding member was due to expire. The member took the view that the last day the Tribunal could be convened was 27 August 2010. As a result of the view he took on that issue, the hearing had to be completed under some pressure of time.

10. [111]

    The Commission had put the complaint before the Tribunal on the basis that some particulars were themselves sufficiently serious to constitute professional misconduct, whereas others might not be so characterised, taken individually, but could constitute professional misconduct taken cumulatively. The presiding member delivered oral reasons as to whether the particulars were established on 24 August 2010. Approximately half the particulars were found proven and about half dismissed. Owing to the way in which the case had been presented, the reasons included no finding as to whether the conduct proved amounted to professional misconduct.

11. [112]

    Following publication of the oral reasons the proceedings continued on the agreed premise that it would be inappropriate for the HCCC to tender material relevant only to the orders to be made before the Tribunal had reached a conclusion as to professional misconduct. In the Court of Appeal, Basten JA said:

12. [113]

    The practitioner accordingly opposed having to make submissions on the appropriate orders before knowing whether any aspect of the complaints constituted professional misconduct.

13. [114]

    Oral and written submissions made at that point were accordingly restricted to the question whether any of the conduct was sufficiently serious to warrant a finding of professional misconduct. The Court of Appeal inferred that each party had expected to be given an opportunity to tender material and make further submissions on 27 August 2010 directed to the issue of what orders should be made. That did not occur. The Tribunal reconvened on that morning with only the presiding member sitting and final orders were announced (over the objection of the practitioner).

14. [115]

    The Court of Appeal held that the orders made that date must be set aside for want of procedural fairness to the practitioner. The full passage from which Handley AJA cited an extract in King states at [65] to [66] (emphasis added):

15. [116]

    The emphasis of those remarks was on the question of the practical fairness of the procedure adopted, having regard to the distinction to which his Honour referred. The decision does not state an inflexible rule as to the precise course of the two stages.

16. [117]

    In that legal context, it is necessary to explain the procedural course of the hearing against Dr Colquhoun as revealed by exhibit 2.

17. [118]

    In the proceedings before the Tribunal, Dr Colquhoun sought to rely on a bundle of documents (labelled the “respondent’s bundle”). Some of the material in the bundle was in the nature of character evidence. On 9 May 2012, the Tribunal gave rulings as to the relevance of documents in both the HCCC’s bundle and the respondent’s bundle. Specifically, the Tribunal made the following ruling as to specified documents:

18. [119]

    A list of documents followed. The documents determined to be irrelevant included statements from the persons listed in particulars (a) to (f) of ground 17 (tabs 2 to 7 of exhibit 2).

19. [120]

    At the same directions hearing, the Deputy Chairperson of the Tribunal made a series of directions (tab 8 of exhibit 2) in which he:

20. [121]

    The hearing of the first stage concluded on 5 July 2012 (see transcript at tab 9 of exhibit 2). On that date, the Deputy Chairperson made the following directions (exhibit 2, tab 11):

21. [122]

    During the course of the discussion about those directions, the Deputy Chairperson told Dr Colquhoun that he would receive the Tribunal’s decision by email. There was some confusion in the exchange on that issue. The transcript records the Tribunal’s acknowledgment that it would reconvene on 18 July 2012 for the parties to hear its decision (exhibit 2, tab 9, T 287.16). However, a few lines later it was clarified that the decision would be published by email (T287.25). The Deputy Chairperson endeavoured at that time to explain the kind of evidence that Dr Colquhoun should put on for the second stage of the hearing.

22. [123]

    By email dated 9 July 2012 at 9.41 am (exhibit 2, tab 10), Dr Colquhoun asked that, for the second part of the hearing, three identified statements be admitted in evidence (those of Tom Goudkamp, Lyne De Salis and Dinah McAviney). In light of the remarks of the Deputy Chairperson referred to above I accept, as submitted on behalf of the HCCC, that it may be inferred Dr Colquhoun made an informed decision to rely on those particular statements.

23. [124]

    Dr Colquhoun was informed of the Tribunal’s findings by email on 10 July 2012 (exhibit 2, tab 14). The document recorded a finding in respect of each particular of the complaints. It found every particular proved. However, it did not record any findings as to whether that conduct amounted to unsatisfactory professional conduct or professional misconduct. Nor were any reasons for decision published at that stage.

24. [125]

    By that date, in addition to the three statements identified above, Dr Colquhoun had evidently also served a statement of Mark Anns.

25. [126]

    On 13 July 2012, Dr Colquhoun wrote to the solicitor for the HCCC noting that he had not yet received any reasons for the Tribunal’s decision. He stated that, without that information, he was not sure what he had to respond to or what arrangements he should make (exhibit 2, tab 16). In the same email, he foreshadowed serving another sworn statement, being that of Nicolee Beaumont.

26. [127]

    On 14 July 2012, Dr Colquhoun wrote to the Tribunal (exhibit 2, tab 17) stating that he had sought legal advice on the outcome of stage one. He said he needed to have “a full examination of the evidence and the reasons for the findings” in order to determine his response to “the completely unexpected outcome”. He foreshadowed requesting an extension of time (presumably a reference to the direction that any additional evidence for use in the second stage of the hearing be filed by 4 pm on Monday 16 July 2012). By email dated 16 July 2012, the HCCC supported the contention that Dr Colquhoun should have an opportunity to review the published findings (including reasons) before having to call evidence or make submissions as to the appropriate protective orders (exhibit 2, tab 18). Buoyed by that support, Dr Colquhoun reiterated his position in a further email later that day, asking that the hearing not reconvene on Wednesday, 18 July 2012 (exhibit 2, tab 19).

27. [128]

    On 17 July 2012, the Tribunal refused the extension of time, publishing short reasons (exhibit 2, tab 21). It was noted that Dr Colquhoun’s submissions as to whether there had been unsatisfactory professional conduct or professional misconduct had been limited and that, for that reason, the Tribunal had not dealt with that issue in stage 1. The Tribunal further noted that, since the commencement of the proceedings, there had always been a possibility that the complainant might succeed in establishing all or most of the allegations.

28. [129]

    When the hearing resumed on 18 July 2012, Mr Griffin reiterated the HCCC’s support for Dr Colquhoun’s contention that he ought to be told, for the purpose of the second stage of the hearing, whether the established conduct amounted to professional misconduct (exhibit 2, tab 22 at T307). In particular, Mr Griffin drew the Tribunal’s attention to the decision of the Court of Appeal in Lucire and foreshadowed the risk of an appeal on the basis that Dr Colquhoun was disadvantaged by “not knowing that early enough”.

29. [130]

    After a short adjournment, the Tribunal reconvened and identified those particulars of the complaint as to which Dr Colquhoun should address on the issue whether they amounted to professional misconduct (exhibit 2, tab 22 at T310). The Chairperson said:

30. [131]

    The Tribunal then extended the time for Dr Colquhoun’s submissions to “Friday morning” (20 July 2012).

31. [132]

    The transcript was sent to Dr Colquhoun early the next morning (19 July 2012). At 10am that day, the HCCC sent an email to Dr Colquhoun drawing his attention to the page of the transcript on which the Tribunal had identified the matters on which he was invited to address (exhibit 2, tab 23). That is the transcript quoted above.

32. [133]

    At the resumed hearing on 20 July 2012, Dr Colquhoun made oral submissions directed to those matters (that is, whether the particulars on which he was invited to address amounted to professional misconduct). He initially indicated that he had written something overnight and that he might have assistance from a barrister pro bono “to help me complete the submission and also a submission with regard to any order – for protective orders”. During the day’s hearing, he provided the written submission to the Tribunal as it was. At the end of the day he indicated that he did not seek any further opportunity to make submissions either as to the issue of professional misconduct or as to protective orders (exhibit 2, tab 25, T443.1-15). However, the Tribunal concluded that, “because of the complexity of the matter”, the parties should have time to file written submissions. A timetable was fixed allowing the HCCC 21 days to file its submissions; allowing Dr Colquhoun 21 days thereafter to file his submissions and allowing the HCCC a further 7 days to file submissions in reply.

33. [134]

    When Dr Colquhoun filed his written submissions, he sought to rely on further evidence (including further statements from some of the persons referred to in particulars (a) to (f) to ground 17 and the statement of Dr Nicholas Bennett referred to in particular (g)). The Tribunal’s decision states, at [344]:

34. [135]

    The decision proceeded to consider the content of the submissions of 30 August 2012.

35. [136]

    In terms, ground 17 alleges that the Tribunal erred:

    1. (1)

       “by failing to allow the plaintiff to tender evidence, on the basis that the information was not relevant to the proceedings. The Tribunal erred by finding the material not relevant.”

    2. (2)

       “by not affording the plaintiff procedural fairness in that it did not allow the plaintiff to properly meet the case of the defendant, by not allowing the tendering of the evidence.”

36. [137]

    Those grounds were included in that form by an amendment allowed towards the end of the hearing of the appeal. As noted by the HCCC, the ground does not make clear whether what is challenged is the ruling as to admissibility given on 9 May 2012 or the decision given on 17 July 2012 refusing an extension of time for the service of any additional evidence for use in the second stage of the hearing.

37. [138]

    Mr Cohen responded by explaining that there are three aspects to ground 17. As I understand the position, they are as follows. First, it was submitted that the ruling given on 9 May 2012 was wrong (T131.33 to 136.21). If I have understood the submission correctly, the contention was that Dr Colquhoun’s credit was in issue at the first stage of the hearing and, accordingly, that although the rules of evidence do not apply in the Tribunal, as a matter of procedural fairness, evidence from people who know Dr Colquhoun and have been aware of his work as to his honesty and credibility ought to have been admitted for the purpose of that stage of the hearing.

38. [139]

    Mr Cohen relied in that context on an exchange between Dr Colquhoun and the Chairperson of the Tribunal (at page 381 of the court book, transcript page 290). In that exchange, the Chairperson quizzed Dr Colquhoun as to how evidence of his having been honest on other occasions could inform the question whether he was honest in his evidence given to the Tribunal. That exchange occurred on 5 July 2012, after the ruling on admissibility given on 9 May 2012.

39. [140]

    Mr Griffin, who appeared for the HCCC, noted that there was no complaint against Dr Colquhoun as to bad character. There was a clear issue as to credit. Mr Griffin submitted that, even if Dr Colquhoun had identified that his credit in the evidence he gave in the proceedings was in issue and had pressed the so-called character evidence for that reason, he would (in all likelihood) not have been permitted to rely on that evidence at that stage.

40. [141]

    Whilst it would have been open to the Tribunal to receive evidence as to Dr Colquhoun’s honest character for the purpose of the first stage of the hearing, I am not persuaded that the Tribunal erred in law in excluding that evidence. It is doubtful whether the evidence would have been admissible had the rules of evidence applied. The Tribunal was not required, as a matter of law, to receive such evidence. I would reject this first aspect of ground 17.

41. [142]

    The headline to the second and third aspects of ground 17 was the submission that the procedure adopted by the Tribunal was unfair and illogical (T136.26). If I have understood the submission correctly, the focus of the second aspect is the fact that the Tribunal, in the first stage, determined only the issue whether the complaints were established without giving reasons and without determining at that stage whether the established conduct amounted to unsatisfactory professional conduct or professional misconduct.

42. [143]

    Mr Cohen submitted that, in that circumstance, although the Tribunal endeavoured to explain to Dr Colquhoun the kind of evidence he would have to muster for the purpose of the second stage of the hearing, that advice was of no avail to him because he was not in a position to inform his character witnesses of the Tribunal’s characterisation of the conduct in question.

43. [144]

    In his further written submissions in support of this ground (incorrectly dated 3 May 2014), Mr Cohen submitted that, without having the Tribunal’s reasons for decision at that point, it would be unclear what the nature of the evidence to be gathered by Dr Colquhoun would be. Further, Mr Cohen noted that the evidence would have to be obtained on short notice. He submitted that “it is unreasonable and unrealistic to expect a witness to be prepared some time in advance with sworn evidence just in case a plaintiff be found guilty of the particulars”.

44. [145]

    Mr Cohen further submitted (at T140.13) that the procedure was unfair because the Tribunal indicated that evidence which was not in sworn form would have less weight but gave Dr Colquhoun only six days to collate that evidence.

45. [146]

    Counsel for the HCCC, Mr Griffin, acknowledged that, in his experience, it was unusual for the Tribunal to structure the hearing as it did, handing down only factual findings in the first stage of the hearing without determining whether the conduct was unsatisfactory professional conduct or professional misconduct at that stage. As the summary of events set out above reveals, Mr Griffin indicated as much to the Tribunal during the hearing. Mr Griffin submitted, however, that the approach taken by the Tribunal was nonetheless defensible.

46. [147]

    As to the submission that Dr Colquhoun was required to gather his evidence before knowing the Tribunal’s characterisation of the established conduct, Mr Griffin submitted that, although the Tribunal did not characterise the conduct at the time they made their findings of fact in accordance with “the usual procedure” (as contemplated in King), the Tribunal did proceed to give an indication of its view when the hearing resumed on 18 July 2012. After doing so, the Tribunal extended the time for Dr Colquhoun to make submissions and to adduce evidence in respect of the stage 2 protective orders. It was not a situation where he was required to adduce evidence and make submissions without any indication of the Tribunal’s characterisation of the conduct.

47. [148]

    Mr Griffin further submitted that, having regard to the seriousness of the allegations, Dr Colquhoun could hardly claim to have been caught by surprise, on a fair analysis of the complaint, by the findings of professional misconduct.

48. [149]

    The critical question is whether Dr Colquhoun was afforded a reasonable opportunity to adduce evidence and make submissions as to the findings of misconduct and the orders that should be made. As explained by Basten JA in Lucire, because the definition of professional misconduct is framed in terms of the available orders, it is important to maintain the distinction between those two discrete questions. The first is the characterisation of the conduct, that is, whether it is sufficiently serious to justify a deregistration order. The second is whether such an order must be imposed in the particular circumstances of the case. The denial of procedural fairness in Lucire consisted in the fact that, at the point when the practitioner was expecting to address the Tribunal as to the orders that should be made (having addressed only the characterisation of the conduct) she was denied that opportunity altogether.

49. [150]

    That did not occur in the present case. On the contrary, although Dr Colquhoun indicated that he did not seek an opportunity after the hearing on 20 July 2012 to make further submissions as to the orders that should be made, the Tribunal made directions allowing him that opportunity. He was allowed three weeks within which to make submissions after receiving the HCCC’s submissions.

50. [151]

    It may be accepted that it would have been preferable, and arguably fairer, for the Tribunal to make findings as to the characterisation of the conduct (whether it amounted to professional misconduct) before directing Dr Colquhoun to put on his evidence as to the orders that should be made. In Lucire, the Court of Appeal disapproved the process of receiving material relevant only to the orders to be made before the Tribunal had reached a conclusion as to professional misconduct, owing to the risk that the presentation of such material at that stage “might result in contamination of findings with respect to the proper characterisation of the conduct” (citing Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67]). No complaint was made on that basis in the present appeal.

51. [152]

    However, regard must be had to the fact that the Tribunal’s adoption of a different course itself entailed a consideration of procedural fairness. When pressed by Mr Griffin as to the process approved in Lucire (that the practitioner who is subject to adverse findings is entitled to know whether the conduct amounts to professional misconduct), the Tribunal explained that the problem had been that Dr Colquhoun’s submissions had not addressed that issue “to any real extent” (exhibit 2, tab 22, T307.39). The Chairperson said that the Tribunal had intended to make such findings (as to professional misconduct) but because Dr Colquhoun hadn’t addressed that issue, “it was left so that he could have an opportunity to do that” (T308.1).

52. [153]

    In my view, Dr Colquhoun was afforded a reasonable opportunity to be heard as to both questions. It may be accepted that the timetable allowed for the filing of evidence was tight but, unlike in Lucire, an opportunity was afforded to put on material directed to the orders to be made. There was also an opportunity to make submissions directed to the issue of the proper characterisation of the conduct after Dr Colquhoun had received an indication as to the matters on which he should address in that context.

53. [154]

    The third aspect of ground 17 was that when, on 30 August 2012, Dr Colquhoun did submit further evidence to the Tribunal, the Tribunal denied him procedural fairness in not considering that material or inviting an application to reopen the case (T142.15).

54. [155]

    The submission of that material reflected an about-face to Dr Colquhoun’s indication, at the hearing on 20 July 2012, that he thought he had adequately addressed the Tribunal on the stage 2 issues. As already noted, this was not a situation where there had been no opportunity to address those issues. The Tribunal had reacted to the concerns expressed by Mr Griffin on behalf of the HCCC by flagging the issues Dr Colquhoun should address and, later, by allowing further time for submissions. In the meantime, following the Tribunal’s remarks as to the kind of evidence that would assist, he had selected a number of witnesses as to his competence as a practitioner.

55. [156]

    The procedure adopted by the Tribunal was directed to a significant degree by the approach taken by Dr Colquhoun and the fact that he was not represented. A careful analysis of all of the material in exhibit 2 reveals that, far from rail-roading Dr Colquhoun against his interests, the Tribunal was at pains to accommodate his interests and allowed a degree of flexibility to that end. After considering the whole of the material before me, whilst I can understand that Dr Colquhoun was dismayed by the outcome of the proceedings, I am not persuaded that he was denied procedural fairness.

56. [157]

    Ground 27 characterises the refusal to grant an adjournment as being “manifestly unreasonable”, evidently invoking the principles stated by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 13. That was a very different case from the present case. There, an applicant for a visa had sought an adjournment of her hearing pending the determination of a skills assessment. A favourable skills assessment was a necessary condition of the grant of the kind of visa she sought. The adjournment was refused for the bland reason that she had had enough opportunities to present her case. The High Court upheld a decision that the refusal of the adjournment was so unreasonable as to amount to a denial of procedural fairness because, as it was put by the Chief Justice, there was good reason to expect that the criterion would be met. For the reasons already considered, I am not persuaded that the refusal of the adjournment in the present case is vitiated according to those principles. In effect, what Dr Colquhoun sought was further time to undertake a task he had long known he may well need to undertake.

57. [158]

    In my view, grounds 17, 26 and 27 must be rejected.

58. [159]

    In case I am wrong in my conclusion on these issues, I should record my conclusion as to a further submission made on behalf of the HCCC. The HCCC submitted that, if the Tribunal was wrong not to allow Dr Colquhoun to rely on the further material attached to his submissions of 30 August 2012, that material would not have changed the outcome of the proceedings, citing Stead v State Government Insurance Commission (1986) CLR 141.

59. [160]

    Had it been necessary to consider that issue, I would not have acceded to that submission. I do not think it is possible to conclude with any confidence what the Tribunal would have made of the material it declined to consider. I do not think it can be concluded, in the terms stated in Stead, that the admission of that material could not possibly have produced a different result as to the protective orders made.

Ground 18

1. [161]

   Ground 18 is:

2. [162]

   In part, this ground duplicates arguments raised under other grounds which have already been addressed. Although sought to be characterised as an error of law, it is a transparent attack on the merits of the decision. In my view, ground 18 must be rejected.

Ground 19

1. [163]

   Ground 19 is:

2. [164]

   This ground was evidently added at a time when Dr Colquhoun was self-represented. It was addressed only in his second written submissions (at para 2.17(i)). It was not expanded upon by Mr Cohen (see para 38 of his written submissions). In oral submissions, Mr Cohen said he would have to “park” that ground and there it remained (see T79.1-6 and the discussion of the related point in ground 17(g) at T75.39-76.32).

3. [165]

   The HCCC’s written submissions stated that Dr Sinclair was Patient A’s general practitioner (at 5.5). The submission put by Dr Colquhoun was that her notes showed she had discussed alternative treatments with Patient A and considered him to be a suitable candidate for rapid opiate detoxification treatment.

4. [166]

   As submitted by the HCCC, without more, Dr Sinclair’s conduct could not have informed a consideration of Dr Colquhoun’s conduct in respect of the same patient. The submissions on this ground, such as they were, have not identified any error. Ground 19 must be rejected.

5. [167]

   Grounds 22 to 24 were abandoned.

Challenge to the exercise of power

1. [168]

   It remains to consider ground 25. That ground is expressed as a prayer for relief rather than a ground of appeal, as follows:

2. [169]

   I understood this ground to be consequential upon the arguments put in respect of grounds 1 and 2. As explained in the discussion of those grounds, the judgment of Basten JA in Prakash leaves open the possibility of challenging the exercise of a power by the Tribunal upon demonstration of error of the kind identified in House v The King. However, since all challenges to the exercise of power is necessarily constrained in the manner explained.

3. [170]

   I have already recorded my view that the Tribunal’s conclusion as to the orders that should be made to protect the public was carefully explained. On the premise that its findings of fact have not been impugned, I have not been persuaded of error in the exercise of the Tribunal’s power.

4. [171]

   I would note that the terms of the order do not constrain Dr Colquhoun from making an application for reinstatement within any specified period.

Conclusion

1. [172]

   For those reasons, the appeal is dismissed. I order the plaintiff to pay the first defendant’s costs of the appeal.