Al-Naser v The Medical Board of Australia (Appeal)
[2020] ACAT 19
•20 March 2020
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
AL-NASER v THE MEDICAL BOARD OF AUSTRALIA (Appeal) [2020] ACAT 19
AA 38/2019 (OR 11/2018)
Catchwords: APPEAL – occupational discipline – medical practitioner – appeal against period of suspension from practice – whether the original tribunal failed to identify what it meant by “the conduct” – whether the original tribunal failed to provide adequate reasons – whether the original tribunal had an obligation to separately characterise proven breaches of the Code of Conduct for Doctors – use of the word ‘callousness’ in the original decision – whether the original tribunal erred in taking into account a decision on review of a decision to take immediate action– whether the period of suspension was manifestly excessive – appeal dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 65
Health Practitioner Regulation National Law Act (ACT) s 5
Cases cited:Adamson v Queensland Law Society [1990] 1 Qd R 498
Al-Naser v The Medical Board of Australia [2019] ACAT 71
Al-Naser v Medical Board of Australia [2019] ACAT 110
Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275
Gorman v NSW Health Care Complaints Commission [2012] NSWCA 251
Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
Health Care Complaints Commission v Malouf [2019] NSWCATOD 164
House v The King [1936] HCA 40
Kozanoglu v The Pharmacy Board of Australia [2012] VSCA 295Lee v Health Care Complaints Commission [2012] NSWCA 80
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Pettit v Dunkley [1971] NSWLR 376
Reeve v Aqualot Pty Ltd [2012] FCA 679
The Medical Board of Australia v Al-Naser [2019] ACAT 52
The Medical Board of Australia v Al-Naser(No. 2) [2019] ACAT 111
List of
Texts/Papers cited: Good Medical Practice: A Code of Conduct for Doctors in Australia
Tribunal: Presidential Member G McCarthy
Senior Member D Kerslake
Date of Orders: 20 March 2020
Date of Reasons for Decision: 20 March 2020
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 38/2019
BETWEEN:
NATHEM AL-NASER
Appellant
AND:
THE MEDICAL BOARD OF AUSTRALIA
Respondent
APPEAL TRIBUNAL: Presidential Member G McCarthy
Senior Member D Kerslake
DATE:20 March 2020
ORDER
The Tribunal orders that:
The application for appeal dated 10 December 2019 is dismissed.
………………………………..
Presidential Member G McCarthy
For and on behalf of the Tribunal
REASONS FOR DECISION
In 2018-2019, the Tribunal (hereafter the Original Tribunal) heard and determined an application for disciplinary action brought by the respondent, the Medical Board of Australia, against the appellant, Dr Al-Naser, arising from treatment that a patient received at the appellant’s clinic in March 2014. The application alleged five breaches of the ‘Good Medical Practice: A Code of Conduct for Doctors in Australia’ (the Code), as in force at the time.
On 11 June 2019, the Original Tribunal made orders, by way of findings, that each of the breaches was made out. It published reasons for its decision: The Medical Board of Australia v Al-Naser [2019] ACAT 52 (the liability decision). In its reasons, the Tribunal referred to the patient as “patient K”.
On 9 August 2019, the Tribunal held a further hearing to hear submissions about how the appellant’s conduct should be characterised and about what penalties or sanctions should be imposed.
On 4 December 2019, the Original Tribunal determined that the appellant’s conduct constituted professional misconduct as defined in section 5 of the Health Practitioner Regulation National Law Act (ACT) (the National Law). It ordered that the appellant’s registration as a medical practitioner be suspended for nine months and imposed 11 stated conditions on the respondent’s registration. It published reasons for its decision: The Medical Board of Australia v Al-Naser (No. 2) [2019] ACAT 111 (the sanction decision).
On 10 December 2019, the appellant appealed from the sanction decision alleging six errors.
On 20 January 2020, Mr Whybrow, counsel for the appellant, filed an outline of submissions alleging nine errors, although the substance of some of them was common to some of the errors alleged in the application for appeal. There being no objection from the respondent, the Appeal Tribunal gave leave for the appellant to proceed by reference to the nine alleged errors in Mr Whybrow’s submissions in substitution for the errors alleged in the application for appeal.[1]
[1] Transcript of proceedings, 6 February 2020, page 4, lines 39-44
Each of the nine alleged errors was directed to the order that the appellant’s registration be suspended for nine months. At the appeal hearing, Mr Whybrow submitted that an appropriate period of suspension would be, and should have been, three months.
There was no appeal against any of the findings of fact in the liability decision or the findings that each of the five breaches of the Code was made out.[2] There was no appeal against the finding that the appellant’s conduct constituted professional misconduct.[3]
[2] Transcript of proceedings, 6 February 2020, page 9, lines 29 – 33
[3] Transcript of proceedings, 6 February 2020, page 11, lines 34 - 39
The substance of the appeal was whether the Original Tribunal erred in any of the ways alleged and, if so, whether the error affected the result,[4] namely a suspension of the appellant’s registration for nine months. Where the appellant challenged only the period of suspension, which the Original Tribunal determined in the exercise of its discretion, it was incumbent on the appellant to establish error in accordance with the principles established in House v The King.[5]
[4] For an outline of the character of an appeal within the Tribunal, see Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275 at [29] – [42]
[5] House v The King [1936] HCA 40; Coal & Allied v AIRC (2000) 203 CLR 194; Gorman v NSW Health Care Complaints Commission [2012] NSWCA 251 at [125]
We heard the appeal on 5 February 2020. Mr Whybrow appeared for the appellant. Ms Wright of counsel appeared for the respondent.
Ground 1: failing to identify what it meant by “the conduct” in paragraph 31 of the sanction decision
This ground of appeal was problematic. As Mr Whybrow properly acknowledged,[6] it is clear from the first paragraph of the Original Tribunal’s sanction decision that it used the words “the conduct” throughout the sanction decision (including in paragraph 31) as meaning “the conduct alleged in the application”, meaning the conduct that was the subject of the five breaches that the Original Tribunal found to be made out.
[6] Transcript of proceedings, 6 February 2020, page 18, lines 18 - 34
It is also clear from paragraph 15 of the sanction decision that the appellant understood what “the conduct” entailed, and made submissions with an understanding that the conduct should be characterised, in total, as “unsatisfactory professional performance”. Ground 1 fails.
Ground 2: failing to provide any or any sufficient reasons as to why it found “the conduct” to be professional misconduct as opposed to unprofessional conduct
On its face, ground 2 was also problematic. The Original Tribunal, at paragraphs 26-30 of its sanction decision, provided reasons for why it concluded that the appellant’s conduct constituted professional misconduct. Mr Whybrow did not challenge any of the findings in the reasons or the finding that the appellant’s conduct constituted professional misconduct.
At hearing, Mr Whybrow explained that ground 2 went to the characterisation of the conduct by reference to the definition of ‘professional misconduct’ in section 5 of the National Law, which states:
…professional misconduct, of a registered health practitioner, includes—
(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
Mr Whybrow submitted that in reaching a finding of professional misconduct, the Original Tribunal should have disclosed whether it relied on paragraph (a) or paragraph (b) of the above definition.[7] He submitted that it was not known, for example, whether each, any or some of the breaches found to be made out - by themselves - constituted professional misconduct, per paragraph (a) of the definition, or whether the finding of professional misconduct arose from a consideration “together” of the breaches or some of the breaches that were - by themselves - only instances of “unprofessional conduct”, per paragraph (b) of the definition. This information, he said, should have been provided in order for the appellant to understand the seriousness with which the Original Tribunal viewed ‘the conduct’ and thus to understand why the Original Tribunal imposed a sanction of nine months’ suspension rather than a lesser period of suspension.
[7] The Original Tribunal could not have relied on paragraph (c) of the definition because it did not determine that the appellant is not a fit and proper person to hold registration.
Ms Wright disagreed with Mr Whybrow’s reasoning. She contended that if the appellant wished to know the characterisation of each breach he could have asked, but he never did. She also submitted that the means by which the Original Tribunal concluded that the appellant’s conduct was unprofessional conduct was not relevant when deciding sanction. She submitted that sanction must be decided, as it was, by reference to the qualitative factors set out in section 65 of the ACT Civil and Administrative Tribunal Act 2008.
We were inclined to accept Mr Whybrow’s submission that the sanction decision does not disclose whether the Original Tribunal regarded each breach found to be made out as constituting unprofessional conduct or professional misconduct, or whether a combination of breaches “together” amounted to professional misconduct.
The first difficulty was that nothing turned on the non-disclosure. The Original Tribunal was not required under the National Law to state the paragraph of the definition of professional misconduct on which it relied, or to explain why it did so, and nothing turned upon whether it relied upon paragraph (a) or paragraph (b) of the definition. Either way, the Original Tribunal concluded that the conduct constituted professional misconduct, and the appellant did not challenge that finding.
The second difficulty was that the appellant’s challenge was to the length of the sanction, but we were not persuaded that the pathway that the Original Tribunal took to find that the appellant’s conduct constituted professional misconduct had any material bearing on why it concluded that the appellant should be suspended from practice for nine months.
Immediately following paragraph 31, which records the Original Tribunal’s finding that the appellant’s conduct constituted professional misconduct, is a section of the decision headed “Consequences upon characterisation”. It is apparent that the findings in paragraphs 32 - 42 of the sanction decision are the reasons for why the Original Tribunal imposed a nine-month suspension period. The appellant did not challenge any of those findings.
We were not persuaded that the Original Tribunal erred, when imposing a nine-month suspension period, by not identifying the legislative pathway it took when concluding that the appellant’s conduct constituted professional misconduct. Ground 2 fails.
Ground 3: failing to identify how it characterised each of the established breaches
Ground 3 appeared to be a different way of expressing ground 2, and indeed Mr Whybrow’s written submissions addressed grounds 1, 2 and 3 collectively. As stated, we were inclined to accept that the Original Tribunal did not disclose how it characterised each or any of the established breaches, but Mr Whybrow did not point to anything that required the Original Tribunal to do so.
Even if we were to accept that the Original Tribunal erred in some way by not disclosing how it characterised the established breaches, despite not being required under the National Law to do so, it is not enough just to show error. As Mr Whybrow properly acknowledged,[8] the complainant must show that the error could realistically have affected the result.[9] We were not persuaded (for the reasons given) that the non-disclosure had any bearing on the period of suspension. Ground 3 fails.
Ground 4: finding the evidence established a “high degree of callousness in the breaches of the standards of care in relation to Patient K”
[8] Transcript of proceedings 6 February 2020, page 37, lines 1 - 5
[9] Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [24]; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [45]; ZS v Sentence Administration Board [2018] ACTSC 289 at [103]
This alleged error arose from paragraph 41 of the sanction decision, the relevant parts of which state:
Furthermore the evidence in this case indicates a high degree of callousness in the breaches of standards of care in relation to patient K found established by the Tribunal. This was particularly demonstrated by a failure to provide adequate advice on aftercare and to provide care itself when the opportunity arose on the following day when she complained to the respondent.
The appellant drew on a definition of ‘callousness’ in the Cambridge Dictionary, meaning:
behaviour that is unkind, cruel and without sympathy or feeling for other people.
The appellant then drew upon the meaning of ‘cruel’, meaning:
extremely unkind and unpleasant and causing pain to people or animals intentionally
From there, Mr Whybrow submitted that there was no evidential basis for the Original Tribunal to find that the appellant acted cruelly or with intention to cause pain or discomfort to patient K.
It was then submitted that “the most likely explanation” for the Original Tribunal describing the appellant’s conduct as “callous” is its acceptance of the respondent’s (allegedly unfounded) submissions on sanction arising from counsel for the appellant’s cross examination of patient K, as detailed in response to ground 7 below. From there, the appellant submitted that the length of the suspension (nine months) was “directly related” to this unjustified characterisation of the appellant’s conduct as “callous”.
We were not persuaded by this chain of reasoning. At each step, the reasoning proceeds by reference to assumptions which we were not persuaded should be reasonably made.
We accept, as did the respondent, that there is no evidence to support a finding that the appellant intended to cause patient K to suffer pain or discomfort, but we were not persuaded that the Original Tribunal meant any such connotation when using the word ‘callousness’.
Other dictionaries define ‘callous’ in other ways. For example, the Macquarie Dictionary (seventh edition) relevantly defines callous as “hardened” or “hardened in mind, feelings, etc”. The Australian Concise Oxford Dictionary (1987), defines ‘callous’ as meaning “hardened, hardened; (of person, heart, etc) unfeeling, insensitive”. Neither dictionary uses the word ‘cruel’ in its definition.
In our view, from reading the Original Tribunal’s sanction decision, especially the repeated statements about the appellant’s lack of insight and that he was “dismissive and unconcerned” about patient K or her concerns, it becomes reasonably clear that the Original Tribunal used the word ‘callousness’ in the sense of the appellant’s indifference to patient K’s plight. The appellant did not intend her harm, but he showed no concern one way or the other as to whether harm had been caused.
Also, we were not persuaded that the manner in which the appellant’s counsel conducted the appellant’s case before the Original Tribunal had any bearing on the Original Tribunal’s use of the word ‘callousness’. It is clear from paragraph 41 of the sanction decision that the word ‘callousness’ is directed solely towards the character of the appellant’s breaches of the standards of care that he should have shown towards patient K.
We accept that the Original Tribunal’s conclusion, at paragraph 30 of the sanction decision, that the appellant showed little care or concern for patient K had a bearing on the length of suspension that the Original Tribunal determined was appropriate, but there was no challenge to that factual conclusion.
In summary, ground 4 was a submission that the Original Tribunal improperly determined a nine month suspension consequent upon its conclusion that the appellant intended to harm patient K, where there was no evidence of that intention. The submission fails because we were not persuaded that the Original Tribunal ever drew such a conclusion. Ground 4 fails.
Ground 5: failing to provide any reasons for finding the appellant’s conduct demonstrated a “high degree of callousness”
To a significant degree, ground 5 overlaps with ground 4. Mr Whybrow appropriately dealt with both grounds in a collective manner. Our responses to ground 4 are therefore substantially common to ground 5.
In relation to ground 5, in its terms, we were not persuaded that the Original Tribunal failed to provide any reasons for finding the appellant’s breaches demonstrated a high degree of callousness. After making that statement in paragraph 41 of its sanction decision, the Original Tribunal gave its reasons in the remainder of the paragraph for making that finding. The next sentence in paragraph 41 commences “This was particularly demonstrated by…”. In the remainder of the paragraph, the Original Tribunal stated the appellant’s failures that led it to describe his behaviour as callous. Ground 5 fails.
Ground 6: taking into account and treating as an aggravating matter and a matter relevant to the imposition of a longer suspension, the untested complaint subject to an Immediate Action Application in Al-Naser v Medical Board of Australia [2019] ACAT 71[10]
[10] The appeal ground referred to the citation for the liability decision. The Appeal Tribunal presumes this was an oversight and should refer to the citation for the Tribunal’s reasons for its determination of the appellant’s application for review of an Immediate Action decision, namely Al-Naser v Medical Board of Australia [2019] ACAT 71.
In the sanction decision, the Original Tribunal took account of the appellant’s previous disciplinary history, noting:
… a strong message needs to be sent to the respondent that he cannot continue to ignore the standards of the profession that he practises in. His past disciplinary history and his treatment of patient K indicate that he has little insight into the consequences of [his] breach of the Code.
One of the disciplinary matters referred to in the sanction decision was Al-Naser v Medical Board of Australia.[11] In that matter, the appellant applied for review of the Medical Board’s Notice of Decision to take Immediate Action dated 20 December 2018. The Board decided to impose conditions on the appellant’s registration “as immediate action after it considered a notification about the [appellant’s] conduct in performing a circumcision on a male paediatric patient”.[12] The appellant appealed to the Tribunal from the decision of the Board to take immediate action. The Tribunal decided to revoke the condition that the appellant be prohibited from performing circumcisions, but formed a reasonable belief that the appellant posed a threat to persons and that it was necessary to take immediate action to protect public health and safety. We will refer to the Tribunal’s decision as the ‘circumcision decision’. At paragraph 6 of the circumcision decision, to which the Original Tribunal referred in its sanction decision, the Tribunal wrote:
However, the Tribunal formed a reasonable belief because of the objective evidence in relation to the practitioner’s conduct in obtaining inadequate informed consent, his inadequate documentation of the consultation and procedure and his inadequate follow up care of Patient A, that the practitioner poses a serious threat to persons and it is necessary to take immediate action to protect public health and safety. The Tribunal decided to take immediate action under section 156(1) of the Health Practitioner Regulation National Law 2010 (ACT) (National Law) by imposing conditions on the practitioner as set out in the Order.
[11] Al-Naser v Medical Board of Australia [2019] ACAT 71
[12] Al-Naser v Medical Board of Australia [2019] ACAT 71 at [2]
Mr Whybrow correctly noted that at the time of the sanction decision the investigation of the appellant’s conduct in relation to the circumcision was still ongoing and that the complaint was not proven. He properly accepted[13] that the Original Tribunal was able to take the Tribunal’s circumcision decision into account, but submitted that the Original Tribunal erred by placing “significant weight” on it, which (he said) was “an integral part” of its reasoning when imposing a suspension period of nine months.
[13] Transcript of proceedings 6 February 2020, page 38, lines 32 - 42
Mr Whybrow relied on paragraphs 33 and 39 of the sanction decision for why this conclusion should be drawn, and why the alleged error affected the result.[14] Paragraph 33 refers to the Medical Board’s submission that the appellant’s “lack of insight produces an unacceptable risk of recurrence”. Paragraph 34 records the Original Tribunal’s agreement that “lack of insight is a major problem for the respondent and has led to an unenviable rate of recurrence of disciplinary problems.” Paragraph 39 commences with the words “Of perhaps greater concern”, and then refers to the findings of the Tribunal in its circumcision decision in response to the appellant’s review of the Board’s Immediate Action decision.
[14] Transcript of proceedings 6 February 2020, page 36, line 24 - page 37, line 25
We accept that investigation of the appellant’s conduct in relation to the circumcision was ongoing, but we were not persuaded that the Original Tribunal erred in the way it applied the Tribunal’s circumcision decision.
We begin with the status of an immediate action decision. In Al-Naser v Medical Board of Australia,[15] the Tribunal heard an application for review of another ‘Decision to take Immediate Action’ made by the Board in relation to the appellant, this time a decision of the Board made on 27 May 2019 after the Board received two notifications which raised the risk that the appellant “had engaged in multiple boundary violations” with a patient.
[15] Al-Naser v Medical Board of Australia [2019] ACAT 110
We will refer to the Tribunal’s decision as the ‘boundary violation decision’.
In its reasons for decision, the Tribunal noted that in order to take immediate action the Board, and the Tribunal on review, must “reasonably believe” that the practitioner poses a serious risk to persons and that it is necessary to take immediate action to protect public health or safety. The Tribunal referred to decisions of the Federal Court,[16] and the Victorian Court of Appeal[17] about the meaning of ‘reasonable belief’ and the status of interim protection. The Tribunal said:
23. The Federal Court has provided some guidance on what constitutes “reasonable belief”, observing “While the notion of reasonable belief may set the threshold “at quite a low level”, there must be some tangible support that takes the existence of the alleged right beyond mere “belief” or “assertion”.
24. Only interim protection is envisaged when immediate action is taken. In Kozanoglu, the Victorian Court of Appeal said:
While the purpose of the immediate action provisions is the protection of the public … only interim protection is envisaged. The practitioner’s suitability to practice is then revisited, on all the material, before the panel or the responsible tribunal [after a hearing on the merits under Division 12].
[16] Reeve v Aqualot Pty Ltd [2012] FCA 679 at 65 g)
[17] Kozanoglu v The Pharmacy Board of Australia [2012] VSCA 295
We accept that the circumcision decision was a decision only giving interim protection, but we were not persuaded that the Original Tribunal gave it “significant weight” or that it “was integral” to its decision to suspend the appellant’s registration for nine months. Reading the sanction decision as a whole, the circumcision decision was no more than a factor taken into account.
First, the opening words in paragraph 39 “Of greater concern”, on which Mr Whybrow relied, are not a reference to the circumcision decision in comparison to other disciplinary decisions. The comparators were the comments in the previous four paragraphs of the sanction decision about the appellant’s attitude to educational courses he had conducted, the absence of remorse or apology and the Original Tribunal’s need to comment adversely on the appellant’s credibility.
Second, the comments in paragraph 6 of the circumcision decision upon which the Original Tribunal relied are common to many decisions in the appellant’s disciplinary history that the Original Tribunal took into account.[18] Two other disciplinary matters referred to the appellant’s inadequate recordkeeping. Another cautioned the appellant about continuity of care, the need to obtain informed consent and the importance of maintaining copies of signed consent forms.
[18] The disciplinary decisions are listed in the table at page 8 of the sanction decision.
Third, even leaving aside the circumcision decision, the appellant’s disciplinary history generally was not the only basis upon which the Original Tribunal determined the period of suspension. It is apparent that the factors concerning patient K, as set out in paragraph 35, 36, 37 and (in particular) paragraphs 41 and 42, also had a material bearing on why the Original Tribunal concluded that a period of suspension for nine months was appropriate. Ground 6 fails.
Ground 7: accepting the period of suspension proposed by the respondent as “entirely appropriate” in circumstances where the submissions made by the respondent in support of that contention erroneously or improperly:
a. asserted that the way in which Counsel for the appellant cross-examined Patient K indicated the respondent had an uncaring attitude to Patient K and the lack of insight and remorse;
b. treated the decision of the appellant to defend the case against him as aggravating the seriousness of his conduct in warranting a greater sanction;
c. asserting that the findings of the Tribunal that it preferred the evidence of Patient K and rejected conflicting evidence from the respondent demonstrated a “lack of candour” – i.e. conscious dishonesty - on the part of the appellant that was relevant to the length of a suspension from practice; and
d. relied on the untested complaint subject to an Immediate Action Application in Al-Naser v Medical Board of Australia [2019] ACAT 71[19] as conduct relevant to the imposition of sanctions
[19] The appeal ground referred to the citation for the liability decision. The Appeal Tribunal presumes this was an oversight and should refer to the citation for the Tribunal’s reasons for its determination of the appellant’s application for review of an Immediate Action decision, namely Al-Naser v Medical Board of Australia [2019] ACAT 71.
These alleged errors concerned submissions on penalty said to have been made by the respondent’s counsel at the hearing before the Original Tribunal. It was said that the respondent’s counsel “erroneously or improperly” submitted that the manner in which the appellant’s counsel conducted the appellant’s defence aggravated the seriousness of the appellant’s conduct and so warranted a greater sanction.
It was then said that by accepting the respondent’s counsel’s submission on penalty as “entirely appropriate”, the Original Tribunal “took into account irrelevant and improper matters” and so was led into error.
We accept that it would have been wrong, had counsel for the respondent made the alleged submissions on penalty. That is clear from the decision of the Supreme Court of Queensland in Adamson v Queensland Law Society[20] on which Mr Whybrow relied. We accept too that the Original Tribunal would have erred, had it accepted the submission and (by reason of the submission) imposed a greater period of suspension than it would otherwise have done.
[20] Adamson v Queensland Law Society [1990] 1 QD. R 498, 507
However, we are not persuaded that any of these events occurred.
Mr Whybrow referred to a passage of the respondent’s counsel’s written submissions where she submitted that the appellant’s counsel engaged in an “improper cross examination without factual basis” to harass patient K (the allegation). We accept Mr Whybrow’s submission that this was a serious allegation for the respondent’s counsel to make against the appellant’s counsel. Whether the allegation was justified is not an issue for us to determine, nor should we: it would be procedurally unfair to do so. However, we are not persuaded that the allegation was made to support a submission that a more serious penalty should be imposed.
The sentence in which the allegation is made concludes with the claim that the manner of cross-examination was relevant to establishing the appellant’s “uncaring attitude to his patient and lack of insight and remorse”. Mr Whybrow properly accepted that the appellant’s robust defence of the case against him enabled the Original Tribunal to find a lack of insight and remorse. For this reason, the appellant perhaps did not obtain a discount on penalty that might otherwise have been available. However, we can see nothing in the words of the respondent’s counsel’s written submissions that states or implies that the Original Tribunal should impose a greater penalty than it would otherwise have imposed by reason of the appellant’s defence or the alleged “improper cross-examination”.
Even if the submissions of the respondent’s counsel were to be construed as alleged, the relevant consideration is not what submissions were made but what the Original Tribunal took into account when determining the sanction.
Ground 7 encounters further difficulty at this point. We could not see anything that states or implies that the respondent’s submissions about the way the appellant’s counsel conducted his case caused the Original Tribunal’s decision to impose a greater period of suspension than it would otherwise have done. Its statement (at paragraph 43) that it considered the period of suspension proposed by the respondent to be “entirely appropriate”, on which Mr Whybrow relied for why this inference should be drawn, needs to be read in full. The Original Tribunal commented on the proposed period of suspension as being “entirely appropriate in the circumstances” (emphasis added). This should be construed as a reference to the facts and findings set out in previous paragraphs 32-42, none of which refers to the way in which the appellant’s counsel conducted his case.
Mr Whybrow also submitted that it was “entirely inappropriate” for the respondent’s counsel “to suggest” that the alleged improper cross-examination “could be used to establish an uncaring (perhaps callous?) attitude by the appellant or that they were indicia into a lack of insight and remorse.” Again, this is not an issue for us to determine. Even if the submission was inappropriate, the relevant consideration is not the submission made but what the Original Tribunal took into account when determining the sanction it imposed.
We were not persuaded that the respondent’s counsel’s submission had any bearing on the Original Tribunal’s use of the word ‘callousness’ or its statements about the appellant’s lack of insight or remorse. It is apparent, from reading paragraphs 32, 33, 34, 36, 37 and 41 of the Original Tribunal’s sanction decision, that it made those statements with reference to the appellants conduct and his written statement provided to the Original Tribunal - not with reference to the submissions of his counsel. Ground 7 fails.
Ground 8: failing to provide any reasons for determination that the appropriate sanction includes suspension of registration for nine months as opposed to some shorter period was appropriate and necessary
Mr Whybrow submitted that the Original Tribunal did not “expose its reasoning” for determining a nine months period of suspension, “other than by simply stating that it accepted the respondent’s proposed period as entirely appropriate”.[21] He relied on Pettit v Dunkley[22] in support of his submission that a failure to provide reasons for a decision is an error of law.
[21] Appellant’s written submissions dated 20 January 2020, paragraph 34
[22] Pettit v Dunkley [1971] NSWLR 376
This ground too was problematic. The Original Tribunal gave its reasons for the penalty it imposed: they are set out in paragraphs 32-42 of the sanction decision. That is all that was required.[23]
[23] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
The Original Tribunal expressed its opinion that the appellant’s disciplinary history “is not good” (paragraph 34); that the appellant’s “lack of insight is a major problem [that] has led to an unenviable rate of recurrence of disciplinary problems “ (paragraph 34); that it is “difficult to detect any genuine remorse” on the appellant’s part (paragraph 36); that the appellant “expresses no concern for the distress caused to patient K” (paragraph 37); that the appellant’s disciplinary history “indicates a persistent willingness to ignore rules when convenient to do so” (paragraph 41); that the evidence indicates “a high degree of callousness” on the appellant’s part (paragraph 41); and that a “strong message needs to be sent “to the appellant that he “cannot continue to ignore the standards of the profession” (paragraph 41).
It was for those reasons, as made clear by the words “in the circumstances” (paragraph 43), that the Original Tribunal considered the respondent’s proposed period suspension to be “entirely appropriate”: it did not just accept the respondent’s submission that it was so.
There was no challenge to any of the factual findings underpinning the Original Tribunal’s conclusion that the proposed suspension period was entirely appropriate. We were not persuaded, if this was implied in ground 8, that having set out its reasons for finding that a period of suspension for nine months was appropriate, the Original Tribunal was then obliged to give reasons for why it did not think that a lesser period of suspension was appropriate. Ground 8 fails.
Ground 9: imposing a sentence of registration that was manifestly excessive in all the circumstances
Mr Whybrow submitted that the imposition of a nine-month period of suspension for conduct relating to the treatment of a specific patient, some five years earlier, was manifestly excessive in the circumstances. He submitted that the conduct did not involve deliberate malfeasance, in the sense of an abuse of power, and that it is in cases of that kind that a period of suspension of that length is often imposed.
Mr Whybrow properly acknowledged[24] that the appropriate length of a period of suspension is a matter of degree and judgement for the court or tribunal that imposes the penalty to determine, and that it is not for an appeal court or appeal tribunal to disturb the sanction unless it is plainly unreasonable or wrong.[25] Within that framework, Mr Whybrow provided us with a table summarising some 22 decisions in terms of the misconduct involved and the penalty imposed.[26] He submitted, by reference to those decisions, that the penalty imposed on the appellant was outside “the range” that the Original Tribunal should have considered.
[24] Transcript of proceeding, 6 February 2020, page 39, line 47 - page 40, line 5
[25] Lee v Health Care Complaints Commission [2012] NSWCA 80 at [78]
[26] We accept that the summaries were an attempt in good faith to summarise the decisions. We were also provided with copies of the decisions.
Mr Whybrow noted that the appellant’s conduct was not unethical, or deliberate or of a kind that could be characterised as a ‘boundary violation’. He noted that the conduct in question involved a single patient “a long time ago in relation to a procedure he no longer performs”.[27]
[27] Transcript of proceeding, 6 February 2020, page 40, lines 33-35
Mr Whybrow relied on a recent decision of the NSW Civil and Administrative Tribunal (NCAT) in Health Care Complaints Commission v Malouf[28] in which NCAT - at paragraph 259 - confirmed with reference to an earlier decision of the (then) President of NCAT, Wright J, in Health Care Complaints Commission v Dr Della Bruna[29] that when exercising functions under the National Law[30] the protection of the health and safety of the public is “the paramount consideration”. He relied also on Lee v Health Care Complaints Commission,[31] quoted in Malouf, in which the NSW Court of Appeal said at paragraph 34 (e):
(e) since the predominant consideration is the protection of the public, a decision can only be made by reference to the facts of the particular case and by considering what measures are needed to ensure that the future behaviour of the particular practitioner is shaped in a way that is consistent with that protection.
[28] Health Care Complaints Commission v Malouf [2019] NSWCATOD 164
[29] Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31
[30] In the case of NSW, the National Law is adopted by means of the Health Practitioner Regulation National Law (NSW). See Health Care Complaints Commission v Malouf [2019] NSWCATOD 164 at [14]
[31] Lee v Health Care Complaints Commission [2012] NSWCA 80
Mr Whybrow relied on the summary of cases he provided and the principles in Malouf and Lee to submit that a suspension for a period of nine months was neither necessary nor proportionate for the protection of the public.
In our view, the paragraph following that upon which Mr Whybrow relied in Malouf is also relevant. At paragraph 260, the NCAT said:
Shortly after the Appeal Panel summarised these principles, the Court of Appeal held in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35], that protecting the health and safety of the public “includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession.” (emphasis added)
In Lee, Mr Whybrow relied on the comments at paragraph 34 (e). In our view, the additional paragraphs 34 (a), (b), (c), (d) and (f) about the use of comparable decisions are also relevant. In Malouf, quoting the Court in Lee, NCAT said:
In Lee v Health Care Complaints Commission [2012] NSWCA 80 at [34] the Court of Appeal summarised the approach the Tribunal should take to comparable decisions:
(a) comparison with the outcomes in earlier cases may be useful if those earlier cases show some discernible range or pattern;
(b) such a range or pattern, even when discernible, cannot be regarded as a precedent indicating what is “correct”;
(c) the range or pattern is, at best, a reflection of the accumulated experience and wisdom of decision-makers;
(d) the range or pattern will potentially be of value only if it is possible to gather from it an appreciation of some unifying principle;
(e) since the predominant consideration is the protection of the public, a decision can only be made by reference to the facts of the particular case and by considering what measures are needed to ensure that the future behaviour of the particular practitioner is shaped in a way that is consistent with that protection; and
(f) the Medical Tribunal, as a specialist tribunal, brings special skill and experience to the task of formulating protective orders.
Applying these principles, we were not persuaded that the Original Tribunal erred when imposing a nine-month period of suspension. It is apparent from the sanction decision that the Original Tribunal decided the sanction not simply by reference to a single incident five years ago, but by reference to many other factors including its concern about the appellant’s indifference to the harm that patient K suffered, his lack of insight into the standards expected of him as a medical practitioner, and how that lack of insight “has led to an unenviable rate of recurrence of disciplinary problems”. In this sense, patient K was not a single incident.
In our view, reliance on the fact that the events concerning patient K occurred “a long time ago” is also misplaced because the events concerning patient K were followed by other incidents for which the appellant has been disciplined. Put another way, subsequent conduct in 2016 and 2018 for which the appellant was disciplined, and the unchallenged findings of the Original Tribunal about the appellant’s lack of insight into his responsibilities as a medical practitioner and the absence of any genuine remorse on his part for the inadequate treatment of patient K contradict any suggestion that he has become a “changed person”.
In this respect, we refer to a decision of the NSW Court of Appeal in Health Care Complaints Commission v Litchfield Matter No Ca 40748/96 (on which Ms Wright relied) in which the Court commented on how a disciplinary body should approach events the subject of a disciplinary charge that occurred a long time ago. The Court said:
Moreover there was nothing to suggest that the doctor had become a changed person during the 4 years since the last of the incidents. The nature of his defence precluded any admission of guilt or expression of contrition. In these circumstances the long period between the first and last complaints was a factor which operated in favour of an order for removal. There was no claim that these incidents reflected “some isolated or passing departure from proper professional standards amounting to something less than proved unfitness”. See NSW Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 183.
In cases such as this, the Tribunal and this Court should not assume that the doctor has become a reformed person. As Walsh JA said in Ex Parte Tziniolis (1966) 67 SR (NSW) 448 at 461:
Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man.[32]
[32] Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, 636
The sanction of nine months suspension from practice was imposed not as punishment for what happened to patient K a long time ago, but to send “a strong message” to the appellant “that he cannot continue to ignore the standards of the profession he practises in.” (emphasis added). Ground 9 fails.
Conclusion
For these reasons, the application for appeal will be dismissed.
………………………………..
Presidential Member G McCarthy
For and on behalf of the Tribunal
HEARING DETAILS
FILE NUMBER: | AA 38/2019 (OR 11/2018) |
PARTIES, APPLICANT: | Nathem Al-Naser |
PARTIES, RESPONDENT: | The Medical Board of Australia |
COUNSEL APPEARING, APPLICANT | S Whybrow |
COUNSEL APPEARING, RESPONDENT | S Wright |
SOLICITORS FOR APPLICANT | WMG Legal |
SOLICITORS FOR RESPONDENT | Australian Government Solicitor |
TRIBUNAL MEMBERS: | Presidential Member G McCarthy Senior Member D Kerslake |
DATE OF HEARING: | 6 February 2020 |
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