Amos v Western New South Wales Local Health District

[2016] NSWSC 1162

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Dr David Amos v Western New South Wales Local Health District [2016] NSWSC 1162
Hearing dates:	27 and 28 July 2016
Date of orders:	23 August 2016
Decision date:	23 August 2016
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	(1) Pursuant to Uniform Civil Procedure Rule 59.10(2) the time in which the Plaintiff can seek review of the decision made on 4 March 2016 to issue him a warning be extended up to and including 5 July 2016; (2)   The proceedings be otherwise dismissed; (3)   With effect from 5pm on Friday, 27 August 2016 the parties be relieved from further compliance with the undertakings given to the Court on 28 July 2016; (4)   The Plaintiff pay the First Defendant’s costs of the proceedings; and (5)   There be no order as to the Second Defendant’s costs of the proceedings.
Catchwords:	ADMINISTRATIVE LAW – visiting medical officer received Warning Letter – subject of adverse findings in report – consideration of suspension – possible report under s 99A of Health Services Act 1997 – status of visiting medical officer – whether position created under or regulated by statute – issue of Warning Letter – whether amenable to judicial review – whether step taken under and for purposes of Health Services Act 1977 – whether apt to affect interest of visiting medical officer – HELD – no obligation to afford natural justice in relation to Warning Letter – external expert engaged to provide report – whether report is step taken under and for purposes of Health Services Act – whether report apt to affect interest of plaintiff – HELD – no obligation to afford procedural fairness prior to making report – suspension decision – whether injunction should issue to restrain suspension – whether plaintiff demonstrated sufficient likelihood that breach of natural justice will occur – HELD – likelihood of breach not established – summons dismissed
Legislation Cited:	Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) Government Information (Public Access) Act 2009 (NSW) Health Services Act 1977 (NSW) Migration Act 1958 (Cth) Public Hospitals Act 1929 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Ackroyd v Whitehouse (1985) 2 NSWLR 239 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Applicant VEAL of 2002 v Minister for Immigration and Multicultural Affairs [2005] HCA 72; (2005) 225 CLR 88 Attorney-General (UK) v Nottingham Corporation [1904] 1 Ch 673 Banks v Transport Regulation Board (Vic) (1968) 119 CLR 222 Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; 78 NSWLR 393 Cornall v AB (A Solicitor) [1995] 1 VR 372 Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations and Anor (2011) 195 FCR 318 FAI Insurances Ltd v Winneke (1982) 151 CLR 342 Jarratt v Commissioner of Police for New South Wales [2005] HCA 50; (2005) 224 CLR 441 Jones v Dunkel (1959) 101 CLR 298 Karimbla Properties (No 50) Pty Ltd v State of New South Wales & Anor [2015] NSWSC 778 Kioa v West (1985) 159 CLR 550 Macksville & District Hospital v Maze (1987) 10 NSWLR 708 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Border Protection & Anor v SZSSJ & Anor [2016] HCA 29 Minister for Immigration and Ethnic Affairs v Taveli & Ors (1990) 23 FCR 162 Plaintiff M61/2010E v The Commonwealth of Australia (2010) 243 CLR 319 R v Panel on Take-Overs and Mergers; Ex parte Datafin PLC [1987] 1 QB 815; 1 All ER 564 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Sanders v Snell [1998] HCA 64; (1998) 196 CLR 329 State of Victoria v Masters Builders’ Association of Victoria [1995] 2 VR 121 The Queen v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 Tuch v South Eastern Sydney and Illawarra Area Health Service [2009] NSWSC 1207
Texts Cited:	Aronson and Groves, Judicial Review of Administrative Action (5th ed 2013) at [3.180].
Category:	Principal judgment
Parties:	Dr David Amos (Plaintiff) Western New South Wales Local Health District (First Defendant) Chief Executive, Western NSW Local Health District Claim (Second Defendant)
Representation:	Counsel: Ms M Allars SC (Plaintiff) Ms K M Richardson with Mr T Hackett (Defendant)   Solicitors: TressCox Lawyers (Plaintiff) Bartier Perry (First Defendant)
File Number(s):	2016/203576
Publication restriction:	Nil

Judgment

1. The Plaintiff in these proceedings, Dr David Amos, is an interventional cardiologist who holds a visiting medical officer (“VMO”) appointment at the Orange Health Service. The Orange Health Service is a hospital operated by the First Defendant, the Western NSW Local Health District (“LHD”). Dr Amos had his appointment as a VMO renewed in early 2014. He is the head of the Cardiology Department. The Second Defendant is the Chief Executive of the LHD (the “Chief Executive”). The Chief Executive filed a submitting appearance.

2. In the circumstances I will describe, the LHD is currently giving consideration to suspending Dr Amos’ appointment as a VMO. In response, Dr Amos invokes the Court’s supervisory jurisdiction under s 69 of the Supreme Court Act 1970 (NSW). Dr Amos seeks, inter alia, an injunction preventing his suspension on the basis that he apprehends he will be denied procedural fairness and an injunction preventing his being reported to the Medical Council of New South Wales under s 99A of the Health Services Act 1997 (NSW) (the “HSA”) without procedural fairness being afforded.

3. Dr Amos also seeks an order quashing a report that was prepared for the LHD by Associate Professor Zeitz in late April 2016 (the “Zeitz report”). The Zeitz report addressed various complaints by Dr Amos against a doctor in the Intensive Care Unit (“ICU”) of the Orange Heath Service, Dr Flynn, as well as complaints made by Dr Flynn against Dr Amos. The Zeitz report rejected the complaints made against Dr Flynn but upheld some of the complaints against Dr Amos. Dr Amos contends that the production of the Zeitz report denied him procedural fairness.

4. Dr Amos also seeks relief quashing a decision to issue a letter dated 4 March 2016 that referred to him misconducting himself and which warned of possible disciplinary action (the “Warning Decision” and “Warning Letter” respectively). Dr Amos contends that the Warning Decision involved a denial of procedural fairness.

5. In addressing Dr Amos’ claims it must be emphasised that the Court was not asked to determine, and has not sought to resolve, the merits of the complaints against Dr Amos or whether, even if they are established, they give rise to a basis to suspend him. It is not part of the Court’s function to undertake any such assessment. Instead, the Court’s sole function is to determine the legal validity of the impugned conduct and the threatened suspension.

6. For the reasons that follow, Dr Amos’ case will be dismissed. In summary, while neither the issue of the Warning Letter or the completion of the Zeitz report involved the exercise of any express power conferred by the HSA, both acts constituted steps taken under, and for the purposes, of the HSA and as such are amenable to judicial review. However, I find that procedural fairness was not required to be observed prior to undertaking either action as neither of them were “apt to affect an interest” of Dr Amos. [1] Instead, any affection of an interest of Dr Amos would only occur in the event that an express power conferred by the HSA was exercised which, in the case of suspension, could only be undertaken if procedural fairness was observed. In that regard Dr Amos failed to demonstrate to the requisite degree of likelihood that any decision to suspend him, including a decision that relied on the contents of the Zeitz report, would involve a denial of procedural fairness. Similarly, Dr Amos failed to demonstrate to the requisite degree of likelihood that any decision to report him under s 99A of the HSA would involve a denial of procedural fairness.

   1. See Minister for Immigration and Border Protection & Anor v SZSSJ & Anor [2016] HCA 29, (“SZSSJ”) at [75]

7. To explain these conclusions it is first necessary to set out the events from the time of the incidents that have given rise to the complaint against Dr Amos to the date of the hearing.

The Incidents

8. The potential for Dr Amos to be suspended arises out of five incidents. As it is necessary to explain and address the case that Dr Amos propounds I will briefly describe them. Nothing that follows amounts to any finding that any contested detail of those incidents occurred, that any conduct of Dr Amos fell below any applicable standard appropriate to VMOs or that any such conduct gives rise to a basis for his suspension.

9. The first of these incidents is a conversation between Ms Catherine Nowlan, the General Manager of Orange Health Service, and Dr Amos on 7 July 2015. It is said that during that discussion Dr Amos used an expletive and, in particular, that he referred to himself as not being “fucking insane”. In recounting his version of that discussion Dr Amos stated that he used that phrase when he was discussing with Ms Nowlan his suspicion that a former member of the hospital’s staff who improperly accessed patient data was involved in a systemic plan to steal patient data. He says he described himself in that way as part of his explanation as to why his suspicion was not part of some baseless conspiracy theory.

10. The second incident relates to the treatment of a patient who was admitted to the Orange Health Service on 11 June 2015 (“Patient 2”). Patient 2 presented to the emergency department after having what was thought to be a cardiac arrest. A dispute arose between Dr Flynn and Dr Amos as to whether Patient 2 should be transferred to the “Cardiac Cath lab” in the Cardiology Department, whether Dr Flynn acted appropriately in altering the medication prescribed by Dr Amos for Patient 2 and whether Dr Flynn made disparaging comments about Dr Amos to a colleague. [2]

    2. Exhibit DE-2, pp 83 and 85

11. The third incident concerns an altercation between Dr Flynn and Dr Amos on 15 August 2015. The altercation arose out of the admission of a patient (“Patient 3”) who had been managed by Dr Amos. During the night of her stay Patient 3 was transferred to the ICU unit as she was experiencing respiratory failure. Dr Amos became aware of the transfer during his rounds the following morning. It is said that the failure to notify him of the transfer angered him, and when he discovered that the antibiotics regime that he had prescribed was changed, he became abusive towards Dr Flynn.

12. The fourth incident occurred on 3 December 2015 when Dr Amos is said to have collapsed in a catheterisation laboratory during a critical intervention procedure. As I will explain, this matter has only recently been raised in correspondence from the LHD and was not the subject of any aspect of the Zeitz report. At this stage it suffices to note that Dr Amos has stated that he felt unwell because he had been working long hours and had not eaten properly. He has obtained medical evidence to prove that he is healthy and fit to perform work.

13. The fifth incident is said to have occurred on 23 February 2016 where Dr Amos is alleged to have used offensive language towards, and been dismissive of, a health and safety officer during a “Cardiology engagement meeting”.

The Warning Letter and the Engagement of Associate Professor Zeitz

14. On 18 August 2015, the Director of Intensive Care at the Orange Health Service, Dr Fiona Shields, wrote to Dr Amos about the incident on 15 August 2015 involving Patient 3. [3] She stated that she had received four letters about Dr Amos’ conduct which alleged that he had been shouting, that he pointed and thrust his finger at Dr Flynn’s face, that he swore at Dr Flynn and that the interaction occurred in front of staff and families of patients. The letter also made reference to a previous complaint referring to a “similar interaction” which concerned Patient 2 on 11 June 2015. Dr Shields asked Dr Amos to address the matters she alleged in writing and indicated she was prepared to meet at a mutually convenient time to discuss her concerns.

    3. Exhibit DE-2 at Tab 2

15. On 4 September 2015, Dr Amos responded to Dr Shields’ letter. [4] Dr Amos stated that he had concerns relating to the “clinical management, patient handover and professional communication[s]” of Dr Flynn. He instanced the treatment of five particular patients, including Patients 2 and 3. Dr Amos said that Dr Flynn’s behaviour towards him had been “discourteous and disrespectful”. He said that Dr Flynn disparaged him to others. Dr Amos stated that his “frustration and deep displeasure” at the repeated behaviour of Dr Flynn was expressed in their conversation on 15 August 2015 but he denied that any “shouting or swearing occurred” and stated that “no threats were made”. [5]

    4. Exhibit DE-2 at Tab 3

    5. Exhibit DE-2 at p 6.3

16. On 2 October 2015, Ms Di Wykes, LHD’s Director of Clinical Governance, wrote to Dr Flynn advising him of the complaint from Dr Amos about his conduct and providing him with the details of that complaint. Ms Wykes invited Dr Flynn’s response. Dr Flynn responded on 12 October 2015. [6]

    6. Exhibit DE-2 at Tab 5

17. On 18 October 2015, Dr Amos wrote to Dr Flynn apologising “for my behaviour in the ICU on the 15th August”. [7] Dr Amos stated that “[t]he conversation was louder than anticipated and not in an appropriate place”. Dr Amos apologised if Dr Flynn “interpreted this discussion as aggressive” and stated that he would ensure that it would not occur again.

    7. Exhibit DE-2 at Tab 7

18. In December 2015 Ms Wykes made contact with Associate Professor Zeitz about the possibility of him reporting on the competing complaints of Dr Flynn and Dr Amos. [8] To that end, on 14 January 2016, Ms Wykes wrote to Associate Professor Zeitz. Ms Wykes’ letter stated that the LHD required “an independent clinical review investigation relating” to the care provided by Dr Amos and Dr Flynn. [9] Ms Wykes enclosed copies of documents including patient healthcare records, the letter of 18 August 2015 from Dr Shields to Dr Amos and a letter of complaint from Dr Amos to Ms Wykes dated 11 September 2015. Ms Wykes instructed Associate Professor Zeitz to provide “expert clinical advice” as outlined in the attached Terms of Reference. Ms Wykes drew Associate Professor Zeitz’s attention to s 139 of the HSA and stated that the LHD would “consider you to be providing expert advice to the Local Health District in your professional capacity in connection with the review and await the written report detailing your findings as outlined in the Terms of Reference”.

    8. Exhibit DE-2 at Tab 8

    9. Exhibit DE-2 at p 22.5

19. The attached Terms of Reference noted that concerns had been raised by Dr Flynn and Dr Amos about each other’s behaviour and described the services provided by the Orange Health Service. It set out the background to the complaints. Under the heading “Patient Details Clinical Concerns” the Terms of Reference identified the five patients the subject of the complaints and the issues of concern raised by each of Dr Amos and Dr Flynn. Next, the Terms of Reference stated. [10]

“Appointment

In accordance with my delegated authority, I hereby appoint Associate Professor, Dr Christopher Zeitz …. as lead investigator to investigate the complaint or concern about the professional performance of Dr David Amos and Dr Gordon Flynn specifically in the management of the identified patients.”

10. Exhibit DE-2 at p 29.2

20. Under the heading “Scope of the Investigation” the Terms of Reference stated that the investigator was to investigate the professional performance of Drs Amos and Flynn in the patient cases, to “[a]ssess the validity of the complaints or concerns to the standard of proof on the balance of probabilities in the specified cases”, to “[p]rovide professional comment and recommendations whether the clinical management provided to the patients in the specified cases constitute a significant departure from standard practice” and to “[i]nvestigate further concerns based on interviews with staff or clinicians if considered clinically significant”. The Terms of Reference gave directions to Associate Professor Zeitz in relation to the conduct of the investigation, including a direction as to the staff that should be interviewed. Associate Professor Zeitz was also advised that “the investigation must be conducted with procedural fairness” and referred to some basic elements of that requirement.

21. Under the heading “Investigation Report” and “Actions with the Investigation Report” the Terms of Reference stated: [11]

    11. Exhibit DE-2 at p 31

“… [t]he formal written investigation report is to be submitted to me by 30 April 2016 or as negotiated. The investigation report should cover the background, the complaint or concern, scope of the investigation, methodology of the investigation, a summary of events, findings and conclusions, and recommendations. The investigation report should make one or more of the following findings:

That professional misconduct or unsatisfactory professional conduct occurred;

That there were performance issues not sufficiently serious to warrant reporting to a health profession registration board;

That there were behaviour issues;

That there may be impairment;

That there were systems issues; and

That there were no individual performance or systems issues.

Actions with the Investigation Report

Once the investigation report has been submitted, WNSWLHD will:

Request a written response to the findings in the report as they pertain to the clinician from the clinician. This written response will be considered by the Chief Executive along with the investigation report.

Report any finding that there may be professional misconduct or unsatisfactory professional conduct or performance in accordance with the Health Practitioner Regulation National Law (NSW).

Report any finding that there may be impairment to the Australian Health Practitioners Regulation Agency in accordance with legislation and policy requirements.

Deal with the other findings and recommendations in accordance with NSW Health and WNSW LHD policies.”

22. On 3 February 2016, Ms Wykes wrote to Dr Amos. Her letter advised Dr Amos that a “review of the concerns raised by yourself and Dr Gordon Flynn [had] been secured” and that the “review would be undertaken by Associate Professor Christopher Zeitz”. [12] A further letter sent on 8 March 2016 to Dr Amos again advised that Associate Professor Zeitz would be conducting a review into the matters “raised by yourself and Dr Gordon Flynn”. [13]

    12. Exhibit DE-2 at p 32

    13. Exhibit DE-2 at p 35

23. On 10 March 2016 Dr Amos was handed the Warning Letter by Ms Nowlan dated 4 March. [14] The Warning Letter recounted some of the details of the incident on 23 February 2016, noted that at the conclusion of the meeting Dr Amos had apologised to the health and safety officer and asserted that the apology was an indication that Dr Amos was “aware [his] behaviour was unacceptable”. [15] The Warning Letter referred to Dr Amos having previously been counselled regarding “similar incidents of unacceptable behaviour in the workplace”, the first of which was said to be the incident on 7 July 2015 noted at [9] and the second of which was the incident on 15 August 2015 noted in [11]. The Warning Letter continued: [16]

“You have made previous commitments to ensure that this type of unprofessional behaviour does not reoccur, however the pattern of unacceptable conduct has continued. Therefore, please consider this letter a formal warning that further sustained incidents of this type of behaviour may result in further disciplinary action.

These actions are clearly in breach of the NSW Health Code of Conduct … which defines standards of ethical and professional conduct required of everyone working in NSW Health in any capacity, the outcomes we are committed to, and the behaviours which are unacceptable and will not be tolerated.

Should you require further information regarding the contents of this letter, please contact me to arrange a mutually convenient time to discuss.” (emphasis added)

14. Exhibit DE-2 at p 36.1

15. Exhibit DE-2 at p 33

16. Exhibit DE-2 at p 34

24. On 11 March 2016, Dr Amos responded to Ms Nowlan’s letter. [17] In relation to the incident on 23 February 2016, he stated that he had become aware that there was discussion about a difference of opinion between himself and the health and safety officer which caused discomfort to her. He stated that he formally apologised and circulated his apology to those present at the meeting. Dr Amos expressed his concern that Ms Nowlan “felt the need to group a number of unrelated incidents in a letter and place a formal warning in a file note in [his] employee file” especially at a time when there were external investigation processes underway. Dr Amos addressed the incident on 7 July 2015 by placing his use of expletive in the context referred to in [9]. In relation to the incident involving Dr Flynn, Dr Amos noted that it was under investigation and stated that a “[f]ormal warning to me surrounding this episode seems premature before [the] investigation is complete.” Dr Amos expressed concern that the issue of the Warning Letter “could be perceived as an attempt to influence external investigations and I formally request that your file note not be released.” On the same day, Dr Amos wrote a written apology to the health and safety officer. On 16 March 2016, that officer thanked him for the apology.

    17. Exhibit DE-2 at p 36

Interview with Associate Professor Zeitz

25. On 13 March 2016, Dr Amos participated in an interview with Associate Professor Zeitz. [18] The interview was transcribed. In the first part of the interview they discussed Dr Amos’ background, qualifications and experience and the operation of the Orange Health Service. Associate Professor Zeitz then stated that “we have to delve into the various patient issues that have been raised” and explained that he would do so chronologically. There was a brief discussion about Patient 1 before they discussed the treatment of Patient 2. Dr Amos referred to a dispute about whether Patient 2 should have been taken to the “cath lab”. Dr Amos stated that he recalled that at one point Dr Flynn had made “disparaging comments” about the management of Patient 2. Associate Professor Zeitz asked whether the discussion between him and Dr Flynn became “pretty heated at that stage”. Dr Amos said “I don’t recall it being like that at all” and that it was “tense maybe but not heated.”

    18. Exhibit DE-2 at Tab 15

26. Next, the interview addressed the clinical treatment of Patient 3 on 15 August 2015. Dr Amos stated that Patient 3 was only transferred to the ICU in the later stages of her admission. He explained that Patient 3 experienced respiratory issues and that he had spoken to a “respiratory team” in Sydney about the possibility of transferring Patient 3. Dr Amos said that he “spent half an hour on the phone the day before she went to ICU” and that he “sorted out a plan for her that was double-strength Bactrim … plus … steroids, plus penicillin”. Dr Amos said that during her admission she became “more unwell overnight and was transferred to ICU without any phone call or discussion which I think again is what I find rude …” Dr Amos stated that he had a “strong oversight of my patients” but it was only when he performed his rounds the following morning that he discovered that Patient 3 “had been moved, they had changed the antibiotic treatment that I had spent so much time organising and [this] was frustrating”. He said that “out of character for me, I certainly had a few loud words”. Dr Amos said he felt the discussion he held with Dr Flynn was “in the wrong place and the discussion was actually appropriate but the discussion probably shouldn’t have been held within earshot of the family”. He stated that he had only sworn under his breath. He denied swearing and abusing Dr Flynn in the corridor. The interview between Associate Professor Zeitz and Dr Amos then moved to Patients 4 and 5.

27. On 24 March 2016, Ms Nowlan responded to Dr Amos’ letter of 11 March 2016. [19] She stated that she remained of the view that the behaviour outlined in the Warning Letter was unacceptable. She denied the letter was prepared for any purpose to do with the external investigations then being conducted. She added: “my letter would not be disclosed to the external investigators though it will remain as part of the record of your appointment.”

    19. Exhibit DE-2 at Tab 17

The Zeitz Report

28. Associate Professor Zeitz completed his report in late April 2016. [20] The title of the report describes itself as “a confidential report” on “an investigation conducted on behalf of Western NSW Local Health District”. The report recited the list of documents provided, the persons interviewed, the background to the report, including the listing of the concerns about each patient, and the scope of the investigation. Section 6 of the report recounted Dr Amos’ version of events concerning Patients 1 to 5. [21] Section 7 recounted Dr Flynn’s account. Section 8 of the report summarised the effect of the versions given by the other persons interviewed in relation to Patients 1, 2 and 3. The report stated that none of the staff interviewed had any knowledge of the circumstances of Patients 4 and 5.

    20. Exhibit DE-2 at p 77

    21. Exhibit DE-2 at pp 82 - 84

29. Section 9 of the report is entitled “Clinical issues”. A misnumbered section 6 sets out Associate Professor Zeitz’s “findings”. In relation to all five patients, Associate Professor Zeitz reached no adverse conclusion in relation to Dr Flynn. In relation to Patient 1, Associate Professor Zeitz stated that a suggestion by Dr Flynn about the appropriate form of treatment “should not have been dismissed by Dr Amos” but otherwise made no adverse comment. In relation to Patient 2, Associate Professor Zeitz concluded:

“I do find grounds for concern with regard to the decision of Dr Amos not to take this patient immediately to the cath lab and to discount the views of his colleagues without offering a plausible alternative diagnosis to justify his decision. I am concerned that consideration of the immediate care needs of the patient were secondary to other considerations at the time.” (emphasis added)

30. An earlier portion of this section of the report identifies these “other considerations”. Associate Professor Zeitz stated that “the view of Dr Amos was unduly influenced by the following factors”, namely “the need to call staff in as the cath lab was not currently functioning”, “he had a full clinic in his private rooms that was due to commence” and that another doctor “was not in town at the time to provide support if needed”. [22]

    22. Exhibit DE-2 at p 88.4

31. In relation to Patient 3, being the incident on 15 August 2015, Associate Professor Zeitz found that Dr Amos was “inappropriately verbally and physically aggressive towards Dr Flynn in the presence of patients, staff and family members”. [23] In relation to Patient 5, Associate Professor Zeitz stated that he had concerns regarding management of the patient by Dr Amos. [24]

    23. Exhibit DE-2 at p 89.5

    24. Exhibit DE-2 at p 90.6

32. Under the heading “General Clinical Issues” Associate Professor Zeitz stated:

“There is a clear sense from a number of clinicians that Dr Amos does not consider the opinions of staff that he regards as junior to himself. This is at odds with good clinical practice. There is evidence within the cases described here that Dr Amos discounted or ignored the advice of others as he had already made a decision. Dr Amos remained dismissive of the opinion[s] of others despite repeated representations in at least one case with his behaviour being to the detriment of patient care. The apparent absence of collegiate consideration of treatment options is an issue that needs to be addressed.”

33. The next section of the report is entitled “Non-clinical Issues”. In this section Associate Professor Zeitz stated, inter alia:

“The behaviour of Dr Amos, within the ICU, towards Dr Flynn when he discovered that the antibiotic therapy for [Patient 2] had been changed was a significant departure from expected workplace conduct. The behaviour of Dr Amos has been clearly documented by a number of parties and demonstrates that he was both physically and verbally threatening towards Dr Flynn, despite repeated attempts by Dr Flynn to de-escalate the situation”. [25]

25. Exhibit DE-2 at p 91.8

34. The next section is entitled “Considerations and findings”. Associate Professor Zeitz confirmed his exoneration of Dr Flynn. In relation to Patient 2, Associate Professor Zeitz found that Dr Amos did not “adequately consider” the representations of other staff members that Patient 2 “should be taken directly for angiography” and stated that “the failure to adequately consider the alternative views of his colleagues has the potential to lead to patient harm”. [26] In relation to the incident on 15 August 2015 concerning Patient 3, Associate Professor Zeitz stated that “the conduct of Dr Amos was inappropriate in that he displayed both verbal and physical aggression towards his colleague and displayed such behaviour in the presence of patients and/or family members”.

    26. Exhibit DE-2 at p 92.6

35. In the next section under the heading “Recommendations”, Associate Professor Zeitz recommended, inter alia: [27]

“7.2   That Dr David Amos be formally advised that based on the allegations made regarding his clinical conduct, that I find, on the balance of evidence provided, that the care provided by Dr Amos did not meet the appropriate standard expected of his level of training. The management of [Patient 2] was unnecessarily delayed due to an inadequate assessment of the likely cause of the cardiac arrest, a failure to recognise that a further … arrest had occurred following arrival in the emergency department and a refusal to adequately consider the opinions of his peers despite repeated representations. No alternative hypothesis to justify this delay was offered at the time (or subsequently).

7.3   That Dr David Amos be advised that his behaviour towards Dr Gordon Flynn in the ICU did not meet an appropriate professional standard. This behaviour/incident should be managed through an appropriate standard human resources processes.”

27. Exhibit DE-2 at pp 92 - 93

Response to the Zeitz Report

36. On 6 May 2016, Dr Amos was handed a letter and some attachments by the Chief Executive. [28] The letter set out the adverse parts of the “Consideration and findings” section of Associate Professor Zeitz’s report, the relevant parts of which are summarised above. The letter stated that Dr Amos was being provided with the opportunity to respond to the findings by 20 May 2016 and added that “[g]iven the previous concerns regarding your performance and behaviour towards colleagues, which includes a formal letter of warning, the Local Health District must now consider the actions required to address the potential risks”. Enclosed with the letter was a modified version of the Zeitz report that excluded the summary of the accounts of Dr Amos, Dr Flynn and the other persons interviewed.

    28. Exhibit DE-2 at p 95

37. On 12 May 2016, a solicitor acting on behalf of Dr Amos emailed Ms Wykes seeking, inter alia, a copy of the Terms of Reference and a complete copy of all the documents provided to Associate Professor Zeitz. [29] The next day Ms Wykes responded providing a copy of the Terms of Reference and noted that Dr Amos already had the documents provided to Associate Professor Zeitz listed in his report. [30] Ms Wykes indicated that the healthcare records could be made available for inspection by Dr Amos through the medical records section of the Orange Health Service.

    29. Exhibit DE-2 at p 108

    30. Exhibit DE-2 at p 109

38. On 16 May 2016, Dr Amos’ solicitors wrote to the Chief Executive raising questions about the independence and fairness of Associate Professor Zeitz’s report. [31] They sought a complete copy of the report and an extension of time in which to respond.

    31. Exhibit DE-2 at p 111

39. Meanwhile, on 17 May 2016, there was a meeting of the Cardiology Department of the Orange Health Service. The minutes of that meeting critiqued each of Associate Professor Zeitz’s criticisms of Dr Amos’ clinical performance. [32] The minutes concluded that the Cardiology Department “not only completely stand by the assessment and management of [Patient 2] by Dr Amos, but find that the teamwork in delivering care and the long term outcome achieved was excellent”. The minutes record the department as having “serious concerns with the way [Associate Professor Zeitz’s] review process was conducted” and criticised its lack of rigour.

    32. Exhibit DE-2 at p 114

40. On 19 May 2016, Dr Amos’ solicitors emailed Ms Wykes seeking an extension of the time to respond to the Zeitz report. [33] Ms Wykes responded on the same day agreeing on an extension to 3 June 2016, “conditional on Dr Amos remaining on leave for an additional two weeks returning Tuesday 14 June 2016 (given the Queen’s Birthday Public Holiday)”. [34]

    33. Exhibit 1/34

    34. Exhibit 1/33

41. On 19 May 2016, the Chief Executive wrote to the Orange Health Service medical staff committee responding to various motions the committee had passed concerning the Zeitz report. In one part of his letter, the Chief Executive stated that Associate Professor Zeitz was “engaged under my delegated authority”. [35]

    35. Exhibit DE-2 at p 120.7

42. The minutes referred to in [39] were referred to Associate Professor Zeitz for his consideration. On 30 May 2016, he wrote a letter in response to Ms Wykes (the “Zeitz supplementary report”). [36] In relation to the treatment of Patient 2, Associate Professor Zeitz accepted that “an alternative clinician conducting their own review may reach a different conclusion”, but nevertheless maintained his opinion that the management of the patient was unnecessarily delayed due to an inadequate assessment of the likely cause of the cardiac arrest, that there was a refusal by Dr Amos to adequately consider the opinion of his peers despite repeated representations and there was a failure to offer an alternative hypothesis to justify the delay. Associate Professor Zeitz was critical of the process revealed by the minutes of the cardiology staff meeting considering that it was inappropriate for that forum to be used as a basis for focusing “entirely on defence of the clinicians decisions and actions”. [37] Associate Professor Zeitz considered that the fact that an Cardiology Department’s Staff meeting did that, gave “weight to [his] earlier findings regarding the governance of clinical issues and how they are managed”. [38]

    36. Exhibit DE-2 at Tab 28

    37. Exhibit DE-2 at p 125.2

    38. Exhibit DE-2 at p 125.3

43. On 1 June 2016, the Chief Executive wrote to Dr Amos enclosing the Zeitz supplementary report. [39] The letter concluded “as advised to your legal representative … your response has been requested by Friday 3 June 2016 and you are to remain on leave until Tuesday 14 June 2016, following the Queen’s birthday long weekend”. This was a reference to the email exchanged noted at [40] above.

    39. Exhibit DE-2 at Tab 29

44. On 3 June 2016, Dr Amos’ solicitors sent their client’s response to the Zeitz report to the Chief Executive. Their letter enclosing the response referred to their concerns about “procedural fairness issues” and called for a further investigation by an independent consultant into the interpersonal interactions between Dr Amos and Dr Flynn. [40] The response consisted of a four page statement by Dr Amos addressing the analysis in the Zeitz report of the treatment of Patients 1, 2 and 5. Dr Amos rejected any suggestion that he represented a risk to patient care and submitted that the level of clinical analysis of case material in the Zeitz report was “very poor”. He concluded by requesting that “I not be prevented from returning to work at Orange Health Service immediately”. [41] Enclosed with Dr Amos’ response was 101 pages of supporting material, which included various emails concerning the background to the matter and numerous letters of support testifying to his skill, expertise and character.

    40. Exhibit DE-2 at p 135

    41. Exhibit DE-2 at p 140.8

45. On 10 June 2016, the Chief Executive wrote to Dr Amos’ solicitors stating that he had not yet received a substantive response from Dr Amos in relation to the concerns about his interactions with colleagues that have “considerable impact on clinical care for patients”. [42] His letter stated:

“On 8 June 2016 I asked whether Dr Amos would extend his period of leave and I requested a response by Thursday 9 June. You have indicated in your letter of 9 June 2016 that Dr Amos does not intend to extend his leave.

I am now writing to advise that if Dr Amos does not extend his period of leave then I may give consideration to suspending his appointment under clause 9 of the Public Hospitals (Visiting Medical Officers Fee-for-Service contracts) Determination. I would do so because I consider it to be necessary in the interest of Orange Base Hospital.

…

I will not make a decision on the matter of suspension until 5pm on Friday 10 June. If Dr Amos has advised me beforehand that he will extend his leave then there will be no need for me to give consideration to suspension. …”

42. Exhibit 1/50.3

46. On the same day, Dr Amos’ solicitor responded stating that “Dr Amos has instructed me to inform you that he will extend his voluntary leave from Saturday 11 June until Friday 24 June inclusive”. [43]

    43. Exhibit DE-2 at p 243

47. Dr Amos’ reply of 3 June 2016 was provided to Associate Professor Zeitz for his comment. On 16 June 2016, he wrote to Ms Wykes responding to Dr Amos’ critique of his report. Associate Professor Zeitz stated that Dr Amos’ submission revealed that he adopted an inconsistent response to ICU patients which he said was “concerning”. [44] Associate Professor Zeitz pointed to Dr Amos’ criticism that he was not consulted about the patient management for Patient 3 but took no involvement in patient management in ICU for Patients 4 and 5.

    44. Exhibit DE-2 at p 246.3

48. On 20 June 2013, the Chief Executive wrote to Dr Amos’ solicitors expressing concern that there had been no response to the concerns raised about Dr Amos’ interactions with colleagues. [45]

    45. Exhibit 1/52

49. On 22 June 2016, Dr Amos wrote to the Chief Executive. [46] His letter referred to a formal mediation that was held on Tuesday, 21 June 2016, and stated that it was a reply to the “HR concerns raised in [the Chief Executive’s] letter of 6th May 2016”. Dr Amos said that he had addressed all the clinical concerns raised in his detailed reply. In relation to the human resources concerns, Dr Amos stated that he could not agree with any of the findings or concerns raised or in the Zeitz report. His letter contended that the Zeitz report had “not assessed the personal interactions in a balanced way having dismissed the written account of four witnesses regarding Dr Flynn’s poor professional behaviour”. Dr Amos was also critical of the Warning Letter. Dr Amos’ letter enclosed the letter of 11 March 2016 responding to the Warning Letter as well as supporting letters and statements from other staff at the hospital.

    46. Exhibit DE-2 at Tab 35

50. On 28 June 2016, a senior officer within the Department of Health sent Dr Amos’ solicitor a letter enclosing the report of Mr Gerard Rooney (“Rooney report”) within the Zeitz report. Mr Rooney concluded that the Zeitz report was prepared in accordance with the applicable policy and process, that Associate Professor Zeitz had the requisite skills, qualifications, experience and that the report was undertaken without any perceived bias with all parties having an opportunity to participate in the process. [47] However, this report added “[t]here is no clarity as to whether Dr Amos realised that both he and Dr Flynn were being interviewed as a result of clinical, and behavioural concerns raised about Dr Amos’ practice”. [48]

    47. Exhibit DE-2 at p 291

    48. Exhibit DE-2 at p 90.10

46. On 30 June 2016, the Chief Executive wrote to Dr Amos’ solicitor summarising the conclusions of the Rooney report but noting the qualification just referred to. The Chief Executive stated that if there was such a lack of clarity and “Dr Amos would have said something additional or different, now is the opportunity to do so as no decision in the matter has yet been made”. [49] A response was sought by the following day. On the same day, Dr Amos’ solicitors responded seeking an extension until 5 July 2016 and stating that “Dr Amos would further extend his leave by one week from Saturday 2 July until Friday 8 July inclusive”. [50]

    49. Exhibit DE-2 at p 303.7

    50. Exhibit DE-2 at p 304

47. On 4 July 2016, new solicitors acting on behalf of Dr Amos wrote to the Chief Executive seeking confirmation by the next day that the “warning decision and the Zeitz report are withdrawn and revoked, and that no further action will be taken” based on those decisions, failing which their client might commence proceedings seeking relief. [51]

    51. Exhibit DE-2 at p 307

48. On 5 July 2016 Dr Amos commenced these proceedings.

Consideration of Suspension

54. On 8 July 2016, the Chief Executive wrote to Dr Amos. The letter stated: [52]

    52. Exhibit DE-2 at pp 312 - 313

“In my letter I had referred to my earlier letter of 6 May 2016 where I afforded you the opportunity to respond to matters raised by Associate Professor Zeitz. In answer to the requests of your lawyers I provided you with all of the material you requested relating to the report.

Associate Professor Zeitz’s report identified concerns with regard to the clinical case you provided in the management of [Patient 2]. Specifically the report found that the care you provided did not meet the appropriate standard expected of your level of training. Whilst it is acknowledged that there can be professional differences in clinical views, of particular concern to me is that you appear to refuse to adequately consider the opinions of your peers in this case, despite repeated representations.

The Zeitz report also highlighted concerns relating to your behaviour towards Dr Gordon Flynn in the ICU and found that it did not meet appropriate professional standards.

I later provided Associate Professor Zeitz with the M&M Meeting report of 17 May 2016 for his consideration. On 1 June 2016 I provided you with his review of the M&M Meeting report in which he confirmed his original assessments.

On 3 June 2016 you responded to the clinical aspects raised in the reports, and on 22 June 2016 you responded to the behavioural aspects. I have considered both of those responses. I have also considered the matters raised on your behalf by the AMA, along with the concerns of the Medical Staff Council and the support provided to you by various colleagues.

You were earlier issued with a formal written warning from Ms Nowlan relating to inappropriate behaviour. You had been counselled and provided with support on a number of occasions as a result of other incidents leading up to the issue of that warning.

While the Rooney report pointed to issues with procedure in relation to the Zeitz’s [sic] report and the warning from Ms Nowlan, I have since provided you with an opportunity to address the matters raised in the Zeitz report and the warning from Ms Nowlan. I have taken into account the responses from TressCox of 4 and 5 July that say I should not consider the Zeitz report or Ms Nowlan’s warning letter because of the procedural issues raised by Mr Rooney. However, the responses from TressCox of 4 and 5 July do not otherwise address the concerns raised in the Zeitz report or Ms Nowlan’s warning letter.

My preliminary view is that there appears to be a pattern of behaviour and if that were to continue there may be adverse implications for your clinical practice at the hospital. My preliminary view is also that your responses of 1 June and 22 June 2016 do not demonstrate an ability to reflect on the impact of your behaviour. You are a highly specialised and well regarded clinician with a position of authority across a range of clinical areas and professional groups. Your ability to reflect on your behaviour is significant to your collegial relationships and, as a result, I am concerned there is a risk [to] the safety and quality of the care provided to patients in the Orange Hospital.

For the reasons outlined above, I am considering whether suspension of your appointment under clause 9 of the Public Hospitals (Visiting medical Officers Fee-for-Service Contracts) Determination is necessary in the interests of the hospital. However, my present assessment is that I would not need to consider whether suspension is necessary if the risks of adverse clinical outcomes could be managed through your participation in all of the following proposed measures” (emphasis added)

55. The “proposed measures” referred to in this letter were the undertaking of a number of courses dealing with interpersonal relationships in a medical context and Dr Amos agreeing not to undertake a leadership role for a period of six months. The Chief Executive sought Dr Amos’ response by 5pm as to whether or not he agreed to participate in the “proposed measures”, but stated that if they were not agreed to then Dr Amos would be offered “adequate time to respond to the question as to whether suspension of your employment is necessary in the interest of the hospital”.

56. In his letter, the Chief Executive referred to Dr Amos’ intention to return from leave on 11 July 2016 and stated “I ask that you defer your proposed return from leave to Monday 18 July 2016” as that would “allow time for you to respond to the question whether suspension is necessary as raised in this letter and for me to then make a decision”. The Chief Executive stated that if he proposed to remain on leave until 18 July 2016 he was asked to provide a response “in relation to the issue of whether his suspension was necessary …. by 5pm on 16 July 2016”. [53]

    53. Exhibit DE-2 at p 314.2

57. On 8 July 2016, Dr Amos’ solicitors responded seeking undertakings that no action would be taken based on the Warning Decision or based on the Zeitz report for the purpose of discharging any duty under s 99A of the HSA and that Dr Amos not be suspended. [54]

    54. Exhibit DE-2 at p 315

58. On 12 July 2016, the solicitors for the LHD responded declining to give the undertaking sought. Instead they agreed that if Dr Amos agreed to take leave until 18 July 2016 no decision would be made as to whether his suspension was necessary prior to 17 July 2016. [55]

    55. Exhibit DE-2 at Tab 44

59. On 13 July 2016, Dr Amos’ solicitors responded. [56] They asserted that the time provided by the Chief Executive to respond to the letter of 8 July 2016 was five hours and that was inadequate. This involves a misreading of the Chief Executive’s letter. The Chief Executive’s letter only sought a response within that timeframe to the “proposed measures”.

    56. Exhibit DE-2 at Tab 45

60. Otherwise, Dr Amos’ solicitors raised six matters concerning the letter of 8 July 2016. First they complained that the reference in the letter of 8 July 2016 to an alleged refusal of Dr Amos to “adequately consider the opinions of [his] peers despite repeated representations” without identifying who those peers were was “manifestly imprecise and indeed inaccurate” such that Dr Amos was unable to respond. The letter noted that that phase appeared to be derived from the Zeitz supplementary report and speculated that it was asserting that Dr Flynn was the “peer” whose representations were not considered. The letter disputed that Dr Flynn was a “peer”. The letter also complained that the reference to “repeated representations” did not specify how and when the representations were made, what they consisted of and whether they were made by one or more persons.

61. Second, Dr Amos solicitors contended that, to the extent that the letter of 8 July 2016 referred to a finding in the Zeitz report to the effect that “Dr Amos did not meet an appropriate professional standard”, the Zeitz report was vitiated by a denial of procedural fairness.

62. Third, Dr Amos’ solicitors complained that “other incidents” referred to in the letter of 8 July 2016 “have not been identified and disclosed to Dr Amos to enable him to respond”. The letter stated that if they were the incidents referred to in the Warning Letter then that letter was said to have been given with “no opportunity for hearing of whether any matter justified in that warning was established”.

63. Fourth, Dr Amos’ solicitors complained that the reference to the “pattern of behaviour” in the letter of 8 July 2016 was not properly identified. They noted that the only clinical matter identified in that letter concerned Patient 2 and that one incident could not establish a “pattern”.

64. Fifth, Dr Amos’ solicitors complained that the reference to Dr Amos having an “[in]ability to reflect on the impact of [his] behaviour” was imprecise in that it was not clear whether it is only a reference to an alleged failure to reflect upon the care of Patient 2 or some other matter.

65. Sixth, Dr Amos’ solicitor complained that Dr Amos had not been given any opportunity to respond to the Warning Letter and in any event, such an opportunity would have been too late.

66. The letter concluded by contending that the time offered for a response was inadequate, there was no basis for suspension because “the other matters” were not identified and that the Warning Letter and the Zeitz report were invalid because they were affected by a denial of procedural fairness.

67. On 15 July 2016, Dr Amos approached this Court for interlocutory relief preventing the making of any decision to suspend him or to report him under s 99A of the HSA. The application did not proceed as the Court instead fixed the matter for an urgent final hearing on 27 July 2016. In the meantime, Dr Amos undertook to remain on leave until the date of the hearing and the defendants agreed that no decision to suspend him would be made until that time. After the completion of the hearing on 28 July 2016, the parties extended those undertakings pending further order of the Court so as to enable this judgment to be prepared.

68. On 26 July 2016, being the day prior to the hearing, the Chief Executive wrote to Dr Amos responding to the letter from Dr Amos’ solicitors dated 13 July 2016. [57]

    57. Exhibit 1/59

69. In relation to the other “incidents” referred to in the letter of 8 July 2016, the Chief Executive confirmed that they were the three incidents referred to in the Warning Letter as well as the incident on 3 December 2015 when Dr Amos “collapsed in a catheter lab during a critical intervention procedure”. In relation to that incident, the Chief Executive enclosed an incident report, a file note dated 9 December 2015 prepared by the Acting Director of Medical Services and a letter from Dr McRae dated 9 December 2015. The letter from Dr McRae was originally obtained by Dr Amos and stated that he was fit to undertake all normal work commitments. With the incident on 3 December 2015, the Chief Executive acknowledged that there was evidence that Dr Amos “did not have a chronic medical condition that prevented him from providing patient care.” However, he stated he had a concern arising from the 3 December 2015 incident and the other incidents “that the stress you were under in the workplace may have been a factor in the 3 December 2015 incident and the three behavioural incidents”.

70. The Chief Executives’ letter of 26 July 2016 also enclosed a document entitled “Risk Assessment” which he stated had been provided to him shortly before meeting with Dr Amos on 6 May 2016. The Chief Executive noted that the document “was not up to date in the sense that it was written at a time when your responses to the Zeitz report and the Warning Letter had not been received” [58] but stated that it was, nevertheless, being disclosed “as it is a document that is before me and which I propose to take into account in making my decision as to whether suspension is necessary under clause 9 of the Determination”. The Chief Executive noted that there were two incidents involving Dr Amos referred to on page 2 of the Risk Assessment Report that were additional to what had previously been identified but also stated that he did not propose to take them into account.

    58. Exhibit 1/60

71. The Chief Executive’s letter then stated:

“Rather, I propose to take into account the three behavioural incidents described on page 1 of this letter, together with the correspondence and submissions that have been generated since 6 May 2016 (as referred to in my letter of 8 July 2016) as suggesting that there is a pattern of behaviour, that you do not have an ability to reflect on the impact of your behaviour. Your ability to reflect upon your behaviour is significant to your collegial relationships and, as a result, I have a concern that there is a risk [to] the safety and quality of the care provided to patients in the Orange Hospital.

I also propose to take into account the incident on 3 December 2015 (together with the 3 behavioural incidents referred to on page 1) in relation to my concern that stress in the workplace may have been a factor in the 3 December 2015 incident and the 3 behavioural incidents.”

72. The Chief Executive invited Dr Amos to provide material in response “by 4pm on 1 August 2016.

The Health Services Act 1997 (NSW) and VMOs

73. The LHD is an area health service constituted under s 17 of the HSA. Section 10 specifies the functions of a local health district as including the “promot[ion], protect[ion] and maintain[ance of] the health of the residents of its area” (s 10(a)), “conduct[ing and], manag[ing] public hospitals … under its control” (s 10(b)), “achiev[ing] and maintain[ence of] adequate standards of patient care and services” (s 10(d) and “ensur[ing] the efficient and economic operation of its health services and health support services and the use of its resources (s 10(e)). Section 23 provides for the appointment of a Chief Executive for each health service. Subsection 24(1) provides that the affairs of the health district “are to be managed and controlled” by the Chief Executive. Subsection 24(2) provides that any act done by the Chief Executive on behalf of an area health district is taken to have been done by the area health district.

74. Leaving aside the Chief Executive, an area health service does not employ its own staff. Instead, staff employed by the State of New South Wales and who constitute the “NSW Health Service” are engaged to enable a local health district and any public hospital they control “to exercise their functions” (s 115; s 116(1)(a). Their engagement and deployment is governed by Chapter 9 of the HSA. Subsection 40(1) provides that, subject to certain irrelevant exceptions, a local health district may delegate to any member of the NSW Health Service any of its functions. (The Dictionary to the HSA defines “functions” as including a “power, capacity or duty”).

75. Subsection 22(1) establishes area health districts, including the LHD, as bodies corporate with powers to “do and suffer all things that a body corporate may do”. Subsection 37(1) of the HSA empowers a local health district to “enter into contracts or agreements with any person for the performance of services … with respect to the exercise by the local health district of its functions”. One specific type of service provider is a “visiting practitioner” which includes VMOs. Their engagement is regulated by Chapter 8 of the HSA.

76. Section 78 is found in Chapter 8. It defines VMOs as medical practitioners appointed under a “service contract” to provide services as a visiting practitioner for monetary remuneration for the relevant public health organisation. “Service contracts” are defined in ss 80 and 81 and relevantly include a fee-for-service contract of the kind entered into by Dr Amos (s 81(a)). Division 2 of Chapter 8 regulates the entry into of service contracts. Division 3 provides for a scheme of arbitrations for, inter alia, fee-for-service contracts. Section 91 requires an arbitrator to “determine” the terms and conditions including the rates of remuneration for fee-for-service contracts for VMOs. Subsection 95(2) provides that the arbitrator’s determination is final. Section 98 provides:

“98   Determination contractually binding

Any provision of any service contract that is inconsistent with a determination under this Part is, to the extent of the inconsistency, of no effect on and from the date or dates that the relevant determination is to take effect and the contract is, on and from that date or those dates, taken to be varied so as to include the terms of the determination.”

77. Part 3 of Chapter 8 deals with criminal and disciplinary matters concerning visiting practitioners. Within that part s 99A provides:

“99A    Duty of chief executive to report certain conduct of visiting practitioner

(1)    The chief executive of a public health organisation is to report to the relevant professional council any conduct of a visiting practitioner that the chief executive suspects on reasonable grounds may constitute professional misconduct or unsatisfactory professional conduct under the Health Practitioner Regulation National Law (NSW).

(2)    In this section, relevant professional council means:

(a)    in relation to a visiting practitioner who is a medical practitioner, the Medical Council of New South Wales, or

(b)    in relation to a visiting practitioner who is a dentist, the Dental Council of New South Wales.”

78. Part 4 of Chapter 4 of the HSA deals with appeals concerning appointment decisions concerning VMOs. Subsection 105(1) provides that, if a public health organisation, which includes an area health service, reduces a visiting practitioner’s clinical privileges, refuses to reappoint a visiting practitioner or “suspends or terminates” the appointment of a visiting practitioner then it must give the practitioner notice in writing of the decision and reasons for it within 14 days of the decision being made. Section 106 provides that, subject to certain immaterial exceptions, a person who is dissatisfied with those decisions can appeal to the Minister. Upon receipt of a notice of appeal the (relevant) Minister must appoint a Committee of Review to determine the appeal (s 108(1)). The Committee of Review may make such orders with respect “to the matter appealed from as the Committee considers proper” (s 112(1)).

79. One topic the subject of debate at the hearing concerned the appointment of committees and the preparation of reports. Section 29B of the HSA enables the Chief Executive to establish such committees and councils as he or she considers appropriate to assist a local health district. It was not contended that Associate Professor Zeitz was engaged under that provision. Reference was also made to s 139 which provides:

“139   Liability of persons conducting performance reviews etc

(1)    This section applies with respect to the provision of expert advice or assistance by a person, for or on behalf of a public health organisation or the Health Secretary and in the person’s professional capacity, in connection with:

(a)    a review of the performance or conduct of, or

(b)    a review to determine whether to take disciplinary action in relation to,

any visiting practitioner or relevant employee.

(2)    No matter or thing done by the person in providing the advice or assistance subjects the person personally to any action, liability, claim or demand if the matter or thing was done by the person in good faith for the purposes of executing this or any other Act.

(3)    If subsection (2) prevents liability attaching to a person, the liability attaches instead to the public health organisation concerned or the Health Secretary (as the case may be).

(4)    A reference in this section to the Health Secretary is a reference to the Health Secretary in respect of the provision of ambulance services under Chapter 5A or the provision of health support services under Part 1A of Chapter 10.

(5)    In this section:

relevant employee means:

(a)    a member of the NSW Health Service, or

(b)    a person who:

(i)    is an employee of an affiliated health organisation that is not a declared affiliated health organisation, and

(ii)    is employed in relation to a recognised establishment or recognised service of the organisation.” (emphasis added)

80. Senior Counsel for Dr Amos, Ms Allars SC contended that this provision contemplated that the engagement of an expert to review a person’s conduct was a step taken under the HSA. I address this contention below.

Dr Amos’ Appointment and the Power to Suspend

81. It was common ground that the LHD is obliged to afford Dr Amos procedural fairness before it suspends his appointment as a VMO. The LHD contended that it is engaged in the process of doing exactly that. However there was no agreement as to why it was obliged to afford procedural fairness. It is appropriate to address that issue first as it bears upon the other issues between the parties.

82. With effect from February 2014, Dr Amos was reappointed as a VMO at Orange Health Service for a period of five years. [59] To that end he entered into a fee-for-service contract of the kind referred to in s 80(1) of the HSA. Clause 6 and Schedule 1 of that contract specifies the “clinical privileges” which flowed from his appointment which extend to access to the Orange Health Service to provide medical services to the hospital and its patients including access to the operating theatre. Clause 7 specifies the services that Dr Amos is obliged to provide. Clause 3 subjects the contractual terms to the “Public Hospitals (Visiting Medical Officers Fee-for-Service Contracts) Determination 2014 (the “Determination”) made under s 91 of the HSA. As its name implies the Determination provides that VMOs are to be paid on a specified fee for service basis (and not a wage).

    59. Exhibit 1/18

83. Clause 9 of the Determination provides:

“9    Suspension of Fee-for-service Contract

Subject to Part 4 of Chapter 8 of the Health Services Act 1997, the public health organisation may suspend the appointment of a visiting medical officer in accordance with any applicable by-laws where the public health organisation considers it necessary in the interests of the hospital to which the officer is appointed.

Where the visiting medical officer is so suspended, the respective rights and obligations of the parties under the fee-for-service contract shall be suspended for the duration of that suspension.” (emphasis added)

84. The authority to make by-laws with the approval of the Director General of the Department of Health is conferred on a local health district by s 39(1) of the HSA. Subsection 39(2) empowers the Director General to publish model by-laws. The model by-laws made for local health districts were provided to the Court presumably on the basis that they were adopted by the LHD although that was not proven. In any event they do not address the topic of suspending VMOs.

85. As noted, even though it was common ground that any decision to suspend Dr Amos was conditioned by a requirement to afford procedural fairness, there was no agreement as to why that was so. Counsel for the LHD, Ms Richardson, conceded no more than VMOs were engaged under contract and, although not stated, presumably it is only conceded that a requirement to afford procedural fairness is implied into the contractual arrangements between the LHD and the VMO. Ms Allars SC contended that VMOs occupy a form of statutory office that conferred privileges and imposed obligations albeit with a contractual flavour and as such procedural fairness constrained any decision that would affect the rights and interests of the holder of that office.

86. I accept Ms Allars SC’s submission. In Macksville & District Hospital v Maze (1987) 10 NSWLR 708 (“Macksville”), Mahoney JA found that the relationship between a visiting medical officer and a hospital involved the occupation of an “office” the removal from which was governed by an obligation to afford procedural fairness. [60] Priestley JA agreed with Mahoney JA. [61] Kirby P reached a similar conclusion, finding that it was an “appointment, provided ultimately under statute” which conferred “professional, reputational and economic advantages” the deprivation of which could only occur after procedural fairness was afforded. [62]

    60. Macksville at 730 F

    61. Macksville at 732

    62. Macksville at 711F

87. The statutory regime in Macksville was such that the criteria for the appointment of VMOs and their terms and conditions were fixed by the Hospital Board acting under a by-law made under the Public Hospitals Act 1929 (NSW), the term of office was fixed by a by-law and the power of suspension or termination was conferred by a by-law. [63] The PublicHospitals Act conferred a similar right of appeal to a Minister as that found in s 106 of the HSA. [64] Mahoney JA assumed that the hospital could “as a matter of contract” unilaterally terminate the doctor’s engagement but nevertheless concluded that the “relationship between the doctor and the Hospital was not, or not merely, one of master and servant” because the position of medical officer was “created by statute or, at least was, regulated by it” and “involved a discharge by the medical practitioner of specified kinds of duties for the public benefit” such that the medical officer occupied an “office”. [65] The conclusion in Macksville that the power of removal conferred (ultimately) by statute was conditioned by an obligation to afford procedural fairness is consistent with Jarratt v Commissioner of Police for New South Wales [2005] HCA 50; (2005) 224 CLR 441 (“Jarratt”).

    63. Macksville at 710 to 711

    64. Macksville at 726D

    65. Macksville at 730E-G

88. In this case, the authority of a local health district to engage a VMO is conferred by s 37(1) of the HSA, being a general power to acquire services. Nevertheless, irrespective of whether or not the position of a VMO is created by statute, it is most certainly “regulated” by the HSA and clearly involves the “discharge by the medical practitioner of specified kinds of duties for the public benefit”. [66] In Macksville, the power of suspension and termination was conferred by a by-law whereas in this case the power of suspension derives from the Determination. Ms Richardson submitted that the power was still only contractual in nature because the Determination only has effect as a contractual term between the local health district and the VMO. However, the combination of ss 91 and 98 of the HSA give the determination greater force than just contract. To adopt the phraseology of Kirby P in Macksville, a VMO’s appointment is provided for “ultimately under statute” [67] as is the power of suspension and the right to appeal that suspension.

    66. Macksville at 730F

    67. Macksville at 711F

The Warning Letter

89. The first order sought by Dr Amos is an order under Uniform Civil Procedure Rule (“UCPR”) 59.10(2) extending the time in which he can “seek review of the decision made on 4 March 2016 by Ms Nowlan to issue a formal warning” i.e. the Warning Decision. The second order sought is an order in the nature of certiorari quashing the Warning Decision and the fifth order sought is a declaration that the Warning Decision is void. [68]

    68. Plaintiff’s submissions at [7.1]

90. There was no opposition to the grant of an extension of time however the parties were at issue as to whether the Warning Decision (or Warning Letter) is amenable to judicial review, whether it could only validly be made if procedural fairness was afforded, whether it was afforded and what form of relief, if any, may be available if it was not afforded. Underlying the debate on these issues was a dispute about the effect, if any, of the Warning Decision and the Warning Letter and the connection between them and the exercise of any power or function conferred by or under the HSA.

91. Ms Allars SC’s written submissions contended that Ms Nowlan was exercising a power or function delegated to her by the LHD or was acting as its authorised officer in the sense discussed in Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 (“Carltona”), specifically the function of “achiev[ing] and maintain[ing] adequate standards of patient care and services”. [69] In the alternative, Ms Allars SC contended that Ms Nowlan was acting either as the delegate or authorised agent of the Chief Executive for the purpose of forming the suspicion referred to in s 99A(1) of the HSA. [70]

    69. HSA; s 10(1)(d); see [73]

    70. see [77]

92. Ms Richardson denied these characterisations of the Warning Letter. Ms Richardson contended that in issuing the Warning Letter Ms Nowlan was merely communicating with a contractual service provider to the hospital and that the authority to do so came from the conferral by the HSA on the LHD of the powers of a corporation, [71] and the power to enter into contracts for the performance of services. [72] Ms Richardson submitted that the LHD’s general contracting functions are not amenable to judicial review. In so submitting, Ms Richardson referred to my decision in KarimblaProperties (No 50) Pty Ltd v State of New South Wales & Anor [2015] NSWSC 778 (“Karimbla”) where I expressed doubts about the amenability to judicial review of decisions made by a publicly owned corporation in the course of a tender to sell land when the only statutory support for the sale process was the conferral on the corporation of the powers of a natural person including the power to sell land. [73] The topic of the amenability of the contracting activities of a government body to judicial review, which is not limited to decisions made under statute, is discussed in Aronson and Groves, Judicial Review of Administrative Action (5th ed 2013) at [3.180]. The authors note that there is a general aversion to judicial review of government contracting decisions but add that “aversion has not become judicial abstention”.

    71. HSA; s 22(1)

    72. HSA; s 37(1)

    73. Karimbla at [69] to [75

93. There is no general test for ascertaining what form of administrative action is amenable to judicial review in the exercise of the jurisdiction conferred, or confirmed, by s 69 of the Supreme Court Act 1970 (or its equivalent in other states). The two major areas of doubt concern administrative action not taken under or by reference to a statute especially in the area of contracting (see State of Victoria v Masters Builders’ Association of Victoria [1995] 2 VR 121) and the exercise of some form of governmental or quasi-public function by a private body not acting under statute (see R v Panel on Take-Overs and Mergers; Ex parte Datafin PLC [1987] 1 QB 815; 1 ALL ER 564; Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; 78 NSWLR 393 at [64] to [81] per Basten JA).

94. The starting point is to ascertain whether there is a connection between the action taken and any statute. In Plaintiff M61/2010E v The Commonwealthof Australia [2010] HCA 41; (2010) 243 CLR 319 (“Plaintiff M61”), the High Court granted declaratory relief to the effect that a recommendation made to the Minister that the plaintiff was not a person to whom Australia owed protection obligations was affected by an error of law and a failure to observe procedural fairness. The recommendation was made by independent contractors retained by the Department of Immigration to review internal assessments made by Departmental officers. The plaintiff was an “offshore entry person” detained under s 198 of the Migration Act 1958 (Cth). As such they were not able to make a valid visa application unless the Minister determined that it was in the public interest to do so. [74] This power could only be exercised by the Minister personally and was a power the Minister did not have a duty to consider exercising.

    74. Plaintiff M61 at [11]).

95. The High Court held that the establishment of the review process amounted to a decision by the Minister to consider the exercise of the power to lift the bar on the making of a valid visa application and those processes did not involve any delegation of power but instead were “inquiries made after a decision to consider exercising the relevant powers and for the purposes of informing the Minister of matters that were relevant to the decision whether to exercise one of those powers in favour of a claimant”. [75] Accordingly, it was found that the review process constituted “steps taken under and for the purposes of the Migration Act”. [76] As such the review process was subject to an implied condition that procedural fairness be observed if it was “apt to affect” the interest of an individual. [77] Even though the review was not determinative of the request for the exercise of the Minister’s statutory power to allow the lodgement of a valid visa application, the relevant affection arose because the undertaking of the review process prolonged the period under which the plaintiff was detained under s 198 of the Migration Act 1958 (Cth) [78] .

    75. Plaintiff M61 at [70] and [73]

    76. Plaintiff M61 at [9]

    77. SZSSJ at [75]; Plaintiff M61 at [75]

    78. Plaintiff M61 at [9]

96. Plaintiff M61 (and SZSSJ) demonstrate that, in some circumstances, a determination of whether administrative action is a “step taken under and for the purposes of” the exercise of a statutory power on the discharge of a statutory function can involve a factual inquiry which extends beyond merely comparing the action taken with the express terms of the statute. In Plaintiff M61 the review process was not expressly provided for in the statute, did not involve the exercise of any delegated power or exercise of any such power through an agent, was not determinative of the exercise of any express power conferred by the statute and was undertaken by third party contractors. Nevertheless, it was held to be a “step … taken under and for the purposes of” the Migration Act [79] .

    79. Plaintiff M61 at [9]; SZSSJ at [45])

97. Neither Plaintiff M61 nor SZSSJ have the consequence that any administrative action which is or may be referable to the ultimate exercise of a statutory power is itself subject to a duty to afford procedural fairness. Whether it will be so, will depend on its capacity to affect an interest of an individual or particular group which will in turn usually depend upon its connection to the statutory power or scheme. In many, perhaps most, circumstances an assessment or review undertaken by a public servant of some matter or event which, although not expressly referred to in a statute may be utilised in the exercise of a statutory power, will not of itself attract a duty to afford procedural fairness because it will not of itself be “apt to affect” any “interest” [80] of a particular individual or group. Instead, in most cases the duty to afford procedural fairness will arise at the point of consideration of the exercise of the relevant statutory power and any attendant unfairness in that review or assessment may, but not necessarily will, affect the exercise of that power. The relative uniqueness of Plaintiff M61 lay in the capacity of a process of review not expressly referred to in the Migration Act to affect the interest of an individual via the detention provisions of that legislation.

    80. SZSSJ at [75]

98. It was not suggested that, of itself, the Warning Letter represented or recorded the exercise of any power expressly conferred by the HSA. Nevertheless, the Warning Letter was signed by Ms Nowlan who is an employee of NSW Health. The HSA utilises employees of NSW Health, not necessarily as “delegates” of the LHD, but instead as the staff who effect the discharge by the LHD of its functions as listed in s 10. [81] I infer that that in sending the letter Ms Nowlan was effecting the discharge of those functions by LHD and specifically the function of “achiev[ing] and maintain[ing] adequate standards of patient care and services”. [82] As such, it was a step “taken under and for the purposes” of the HSA and thus amenable to review (Plaintiff M61). If it was not, then Ms Nowlan had no authority to write the letter on behalf of LHD and declaratory relief might be available to reflect that conclusion. Either way, the actions of Ms Nowlan are amenable to judicial review to ascertain if any limits on LHD’s powers or authority were transgressed. In this case was one of those limits the affording of natural justice to Dr Amos?

    81. see [74]

    82. HSA; s 10(d))

99. Before addressing that issue, I record that I reject the contention that Ms Nowlan exercised any delegated authority of the Chief Executive under s 99A of the HSA even if that were permissible in the absence of an express power to do so. At no stage during any of the correspondence concerning the Warning Letter was there any reference to s 99A or any reference to reporting Dr Amos to an investigative body or a professional council.

100. As noted, in SZSSJ, the High Court confirmed the principle that “a statute conferring a power the exercise of which is apt to affect an interest of an individual is presumed to confer that power on condition that the power is exercised in a manner that affords procedural fairness to that individual”. [83] Ms Nowlan’s conduct in sending the Warning Letter was not the exercise of a statutory power but it was undertaken in discharge of a statutory function. In most cases the mere discharge of a function is probably unlikely to be “apt to affect an interest” but what about the Warning Letter?

     83. SZSSJ at [75]

101. The terms of the Warning Letter are set out in [23]. Ms Nowlan agreed not to provide it to Associate Professor Zeitz but stated that it would be retained with the “record” of his appointment. [84] The letter records a conclusion that Dr Amos contravened the NSW Health Code of Conduct. However, while the letter contains a “warning” it is only a warning that further incidents “may result in further disciplinary action”. Nothing in the HSA, the Determination or Dr Amos’ service contract refers to the issue of a warning nor do they indicate that anything of itself results from a conclusion that Dr Amos was in breach of the NSW Health Code of Conduct at least in the respects identified in the Warning Letter. Otherwise, a statement that further incidents “may result in further disciplinary action” is simply a statement of a self-evident truth in that the possibility of disciplinary action resulting from future misbehaviour always exists.

     84. see [27]

102. In these circumstances what “interest” of Dr Amos was affected by this supposed exercise of power by Ms Nowlan? In her written submissions Ms Allars SC contended that Ms Nowlan’s conduct in issuing the Warning Letter and placing it on Dr Amos’ file damaged his reputation citing, Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 (“Ainsworth”). Ms Allars SC also submitted that it “prejudiced his rights and interests as a VMO, and his interests with respect to renewal or future appointment as a VMO and his future employment as a health professional, and hence affected his likelihood” [85] (citing various cases including Sanders v Snell [1998] HCA 64; (1998) 196 CLR 329 at [45]; “Sanders v Snell”).

     85. Plaintiff’s submissions at [3.1]

103. Ms Nowlan’s actions did not have that effect. In relation to his reputation the letter was a private communication between Dr Amos and the LHD. It was only to be kept on his file. There may be an adverse effect upon Dr Amos’ reputation from the publication of the terms of this letter in this judgment but that arises from its tender in open Court as part of Dr Amos’ case and not the actions of Ms Nowlan. In Ainsworth, declaratory relief was granted in respect of the final report of an investigative body that was published to the public and the legislature at the completion of an inquiry. In terms of damage to reputation there is no relevant analogy between such a report and the Warning Letter (see [118ff]). The balance of Ms Allars SC's submissions on this point only begged the question as to how the issue of the Warning Letter prejudices Dr Amos’ rights and interests as a VMO in the manner asserted? The answer to that question is that, of itself, the letter does not but it might so affect his interests if some further action that is expressly provided for under the HSA or the Determination such as suspension or non-renewal of his appointment is considered. For the reasons already given procedural fairness would have to be afforded at that point.

89. The conclusion that no “interest” of Dr Amos was affected by the issue of the Warning Letter is consistent with the passage from Sanders v Snell relied on by Ms Allars SC. That passage contains a finding that the issue of a direction by a Minister to a government tourist board to terminate a person’s employment was conditioned by an obligation to afford procedural fairness. [86] The Board was statutorily obliged to comply with the direction. [87] All of the other cases relied on by Ms Allars SC involved the exercise of an express statutory power which had the effect of depriving a person of a position or a licence (namely, Banks v Transport Regulation Board (Vic) (1968) 119 CLR 222; FAI Insurances Ltd v Winneke (1982) 151 CLR 342; Ackroyd v Whitehouse (1985) 2 NSWLR 239 and Jarrett).

    86. Sanders v Snell at [45]

    87. Sanders v Snell at [8]

90. Accordingly, Ms Nowlan was not obliged to afford Dr Amos procedural fairness before issuing the Warning Letter and this aspect of Dr Amos’ case fails. I note three further matters.

91. First, had I concluded that Ms Nowlan was obliged to afford Dr Amos procedural fairness before issuing the Warning Letter then I would have found that the obligation was breached. In resisting that conclusion Ms Richardson contended that Dr Amos was aware of the details of the three incidents although it was conceded that Dr Amos was not given “specific warning that she proposed to issue him with the Warning Letter”. [88] Dr Amos may have been aware that there were some concerns about the three incidents but he was not advised that consideration was being given to the issue of a warning, much less any opportunity to be heard before it was issued. On any view of the content of procedural fairness those steps were required. [89]

    88. Defendant’s submissions at [23]

    89. Kioa v West (1985) 159 CLR 550

92. Second, Ms Allars SC also submitted that Ms Nowlan was affected by apprehended bias as she witnessed one of the incidents referred to in her letter. In light of my conclusion that there is no obligation to afford procedural fairness I will not address that contention.

93. Third, it follows from the conclusion in [106] that there is a potential for a breach of natural justice to arise in the course of making any decision to suspend Dr Amos if the LHD was to treat the Warning Letter as determinative of the matters with which it deals. However, the evidence does not suggest that the LHD is treating the Warning Letter in that manner.

94. It follows that Dr Amos’ claim for an order in the nature of certiorari quashing the Warning Decision and a declaration that the Warning Decision is void will be dismissed.

The Zeitz Report

110. The third order sought by Dr Amos is an order in the nature of certiorari quashing the Zeitz report and the sixth order seeks a declaration that it is void. As with the Warning Letter the parties debated the interrelated questions of whether the Zeitz report is in itself amenable to review and whether Dr Amos was owed procedural fairness prior to its production.

111. The starting point is the connection between the Zeitz report and the HSA. Ms Allars SC’s written submissions identified a number of references in the evidence to Associate Professor Zeitz being engaged under “delegated authority”. Ms Allars SC instanced the letter of 19 May 2016 [90] and contended that was evidence that the Chief Executive “delegated to Associate Professor Zeitz … part of the power [under s 99A] limited to finding facts as to certain matters and making recommendations”. [91] However, in that letter the Chief Executive only referred to engaging Associate Professor Zeitz under his delegated authority that is the Chief Executive’s authority. He did not refer to Associate Professor Zeitz as his delegate.

     90. See [41]

     91. Plaintiff’s submissions at [2.11]

112. The only document that possibly suggests that any aspect of the Chief Executive’s duty under s 99A was devolved to Associate Professor Zeitz is the Terms of Reference, especially the part headed “Actions with the Investigation Report”. [92] The first point under that heading suggests that both the report and the response from the clinician would be considered by the Chief Executive. One reading of the balance of the points suggests that the findings and recommendations of the Zeitz report would be treated as final with the result that, depending on their content, they would be reported onwards, including under s 99A. However, if that were so it would be difficult to see what role there would be for the consideration of the clinician’s response by the Chief Executive. The preferable reading of that portion of the Terms of Reference is that the references to “finding” and “recommendation” in the second to fourth dot points are only to such findings or recommendations that are adopted by the Chief Executive following consideration of the clinician’s response to the Zeitz report. This is consistent with the subsequent manner in which the report has been treated. In those circumstances there was no delegation of the function under s 99A to Associate Professor Zeitz.

     92. See [21]

113. Ms Allars SC also contended that the Chief Executive authorised Associate Professor Zeitz to “find facts and make recommendations on his behalf, as a duly authorised agent, in accordance with the Carltona principle”. [93] In Plaintiff M61 the High Court noted that the Carltona principle “has been described as a principle of agency, distinct from a delegation of power, which allows an agent to act in the principal’s name and use all the principal’s power”. [94] However, nothing in the evidence supports any finding that Associate Professor Zeitz was authorised to, or purported to, exercise any express power conferred by the HSA on the Chief Executive. The Chief Executive did not purport to “to act through the agency of others”. [95] Instead, at all times Associate Professor Zeitz was engaged to provide a report to and not on behalf of the Chief Executive (or the LHD).

     93. Plaintiff’s submissions at [2.14]; emphasis added

     94. Plaintiff M61 at [68]

     95. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 37 – 38 per Mason J

114. Ms Allars SC further submitted that Associate Professor Zeitz was engaged under Ms Wykes’ delegated authority “and that was a power to appoint a person to give expert advice or assistance for the purpose of the exercise of other powers under the HSA”. [96] Ms Allars SC submitted that subsection 139(1) contemplated the retention of a person to give expert advice or assistance and that the person so engaged “acts on behalf of, or as agent for, the power holder or delegates” [97] which is said to be a statutory counterpart to the Carltona principle. I accept that s 139(1) contemplates the retention of an expert to provide advice and assistance but I do not accept that the expert thereby acts as an agent under some statutory counterpart to the Carltona principle. The function of providing advice and assistance to a decision maker is the antithesis of acting as the agent for and on behalf the decision maker.

     96. Plaintiff’s submissions at [2.16]

     97. Plaintiff’s submissions at [2.18]

115. Ms Richardson submitted that Associate Professor Zeitz was not appointed as an investigator under any (express) statutory power nor exercising any (express) statutory power to investigate and report. So much can be accepted but as Plaintiff M61 (and SZSSJ) illustrate, that does not mean that the commissioning and production of the Zeitz report were not “steps taken under and for the purposes” of the HSA. [98]

     98. Plaintiff M61 at [9(a)]; SZSSJ at [45])

116. I have already discussed Plaintiff M61. In this case, Associate Professor Zeitz was retained to do no more and no less than what was contemplated by s 139(1)(a), namely, advise and provide assistance in connection with a review of the performance and conduct of a visiting practitioner. In doing so he was not exercising any power expressly conferred by the HSA, or any delegated power, or acting as any agent. Instead he was obtaining information and expressing opinions of assistance to the performance by the LHD of its statutory functions and powers, including the power to suspend as well as the possible exercise by the Chief Executive of his function under s 99A of the HSA. Consistent with Plaintiff M61, it follows that the Zeitz report is a “step taken under and for the purposes of” the HSA and is amenable to review. However, again the critical question is whether in conducting the review Associate Professor Zeitz was obliged to afford procedural fairness and specifically whether Associate Professor Zeitz’s review was “apt to affect an interest” of Dr Amos.

117. In oral submissions Ms Allars SC identified the relevant interest of Dr Amos that the Zeitz report was apt to affect as being Dr Amos’ reputation in the workplace and the personal and economic consequences that followed from him being directed to take leave from the hospital. [99] As a VMO, Dr Amos is not paid during any period that he is on leave.

     99. Transcript 27/07/2016 at pp 23 - 24 and pp 26 - 27

118. In relation to reputational damage Ms Richardson’s submissions contrasted the Zeitz report with the report the subject of declaratory relief in Ainsworth. In Ainsworth the report of the Criminal Justice Commission received wide publicity and “blackened” the reputation of the plaintiff. [100] The Court accepted that the report was the outcome of an “inquiry and investigation” and “[o]bviously not every inquiry or investigation has to be conducted in a manner that ensures procedural fairness. [101] Nevertheless, the Court stated that “what is decisive is the nature of the power, not the character of the proceedings which attends its exercise”. [102] Thus, in Ainsworth it was held that the nature of the power, being to publish a report after an inquiry was apt to damage the plaintiff’s reputation. Further the Court stated: [103]

“It is not in doubt that, where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if "the decision-making process, viewed in its entirety, entails procedural fairness……The difficulty in the present case is in viewing the Commission and the Parliamentary Committee as engaged in the one decision-making process. That is because the report was the final step in the discharge by the Commission of the functions and responsibilities which were brought into play by its decision to investigate and report with respect to the introduction of poker machines. Moreover, the functions and responsibilities of the Commission and of the Parliamentary Committee are separate and distinct and serve quite different purposes.” (emphasis added)

100. Ainsworth at 579.6 per Mason CJ, Dawson, Toohey and Gaudron JJ

101. Ainsworth at 576 per Mason CJ, Dawson, Toohey and Gaudron JJ

102. Ainsworth at 576.8 per Mason CJ, Dawson, Toohey and Gaudron JJ

103. Ainsworth at 578 per Mason CJ, Dawson, Toohey and Gaudron JJ

119. The evidentiary foundation for the contention that the Zeitz report damaged Dr Amos’ reputation in his workplace was not made good. The only evidence that it was dissipated amongst anyone other than the Chief Executive, those directly assisting him and Dr Amos was the discussion of its contents during the meeting of the Cardiology Department on 17 May 2016. [104] The minutes of that meeting suggest the discussion was initiated by Dr Amos. However, even allowing for the potential for limited distribution of the Zeitz report, when placed in context, the preparation of the report was at most a preliminary step to the exercise of further powers, particularly the power of suspension the exercise of which is subject to an obligation to afford procedural fairness. Even if the potential damage to Dr Amos' reputation in the workplace was an interest capable of creating an obligation to afford procedural fairness that interest was to be, or at least should be, addressed by the “decision-making process, viewed in its entirety”. [105]

     104. See [39]

     105. See [118]

120. The submission that Dr Amos’ financial interests were affected because he was directed to take leave as a consequence of the Zeitz report fails because its premise, namely that Dr Amos was “directed” or “required” to take leave, was also not made good. It was common ground that Dr Amos has been on leave since 6 May 2016 but there is no evidence that he was “directed” to take leave on that day. On or about 19 May 2016 his period of leave was extended by agreement to 14 June 2016 as part of the request for him to have extra time to respond to the Zeitz report. [106] Similar agreements were made thereafter. [107] No doubt if an agreement had not been reached the LHD would have considered the exercise of its power of suspension and Dr Amos’ agreement to remain on leave was most likely given in the knowledge that the power might be exercised if he did not agree. [108] However, that does not change the circumstance that it was the agreement to take leave and not the Zeitz report that operated to cause Dr Amos to be on leave from at least 19 May 2016. An obligation to afford procedural fairness would have arisen if the power of suspension had been exercised but it was not.

     106. See [40] and [43]

     107. See [45], [46], [51], [56] and [67]

     108. See [45]

121. I note that it was not argued on this point that the statements in the Terms of Reference under the heading “Actions with the Investigation Report” demonstrated that a relevant interest of Dr Amos was apt to be affected by the outcome of Associate Professor Zeitz’s review. [109] In any event, in light of the conclusion in [112] it follows that those statements do not have that effect.

     109. See [21]

122. It follows that Dr Amos’ claim for relief in respect of the Zeitz report fails. I note two further matters.

123. First, had I concluded that Dr Amos was owed an obligation to afford procedural fairness in relation to the completion of the Zeitz report then, as with the Warning Letter, I would have concluded that the obligation was breached. I will not deal with all the matters raised by Ms Allars SC. The following observations will suffice.

124. Ms Richardson contended that Dr Amos was on notice of the potential for adverse findings or conclusions against him in the Zeitz report. Ms Richardson pointed to the fact that Dr Amos was sent the letter of 18 August 2015 which referred to Dr Flynn’s concerns about the incidents involving Patients 2 and 3, [110] and the letters of 3 February 2016 and 8 March 2016 which advised Dr Amos that the review would include the matters raised by Dr Flynn. [111] Ms Richardson also referred to the interview between Associate Professor Zeitz and Dr Amos during which the details of Patients 2 and 3 were discussed. Ms Richardson submitted that, in view of that material and the failure of Dr Amos to give evidence, [112] the Court should not infer that Dr Amos was not aware of the potential for adverse findings to be made against him concerning Patients 2 and 3.

     110. See [14]

     111. See [22]

     112. Citing Jones v Dunkel (1959) 101 CLR 298

125. I accept Ms Richardson’s submission so far as it goes, but it does not travel far enough. The Zeitz report made a number of findings about Dr Amos that went well beyond what was raised in the letter of 15 August 2015 or in his interview with Associate Professor Zeitz. For example, the Zeitz report made a generalised criticism that Dr Amos was dismissive of the opinions of others and that was apparently based on discussions with other clinicians. [113] It appears to find support in part from a finding made in relation to Patient 1 which was only a complaint made by Dr Amos against Dr Flynn and not vice versa. [114] Neither this criticism nor its basis was raised in the interview with Dr Amos or in correspondence in advance of the Zeitz report. Further, in relation to Patient 2 the letter of 15 August 2015 only made complaint about Dr Amos’ conduct towards Dr Flynn and not about his clinical treatment of the patient overall. Yet the Zeitz report was highly critical of Dr Amos’ treatment of Patient 2. In particular it concluded that his treatment was improperly influenced by “other considerations” including his “full clinic in his private rooms”. [115] None of those matters were raised in correspondence with Dr Amos prior to the Zeitz report or in Dr Amos’ interview with Associate Professor Zeitz. If the Zeitz report was determinative of the matters with which it deals, namely the appropriateness of the medical treatment afforded by a specialist to a patient and his conduct in doing so, then the specialist would be entitled to reasonably precise specification of the possible basis of an adverse finding against him or her in advance. [116] Dr Amos did not receive that.

     113. See [32]

     114. See [29]

     115. See [29] to [30]

     116. See Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [106])

126. Second, it follows from the conclusion that I have just reached that there is also the potential for a breach of natural justice to occur in the course of making any decision to suspend Dr Amos if the LHD was to treat the Zeitz report as determinative of the matters with which it deals. Again, the evidence does not suggest that approach will be adopted.

Possible Suspension

127. The eighth order sought is an order restraining the suspension of Dr Amos “or otherwise requesting [Dr Amos] to take leave that is not otherwise due to be taken without affording [Dr Amos] procedural fairness”.

128. To the extent that the proposed order seeks to injunct the LHD from requesting Dr Amos to take leave then it is misconceived. As I have explained, from at least 16 May 2016 the taking of leave by Dr Amos has been a consensual arrangement. No basis has been demonstrated for restraining the LHD seeking a further agreement with Dr Amos about leave. It is always open to Dr Amos to refuse.

129. Further, as framed, the balance of the order is of no utility because there is no dispute between the parties that procedural fairness must be afforded to Dr Amos before any decision is made to suspend him. The real debate concerned the content of the obligation and the possible reliance by the LHD upon the Warning Letter and the Zeitz report. As the argument developed it became clear that the form of order sought extended to either an order restraining Dr Amos’ suspension simpliciter or a more limited order that reflected the complaint that in some respect(s) the process for considering suspension demonstrates that a denial of procedural fairness will occur.

130. In Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations and Anor (2011) 195 FCR 318 (“Dunghutti”) at [39] the Full Court of the Federal Court (Keane CJ, Lander and Foster JJ) restated the proposition that “an injunction will be granted to a party ‘quia timet’, ie because it fears that it will wrongfully be harmed by the actions of another, only where there is ‘a strong probability almost amounting to a moral certainty’ that that party will be wrongfully harmed” citing Attorney-General (UK) v Nottingham Corporation [1904] 1 Ch 673 at 677 (“Nottingham Corporation”). In Dunghutti, a show cause notice had been issued to an Aboriginal corporation prior to a decision being made to place it under administration under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth). The Full Court found that the “strong probability” referred to in Nottingham Corporation was not established by “pointing to arguable deficiencies in the particularisation of the show cause notice which may not be acted upon or which may be resolved before they are acted upon”. [117] To similar effect, in The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 117, Dixon CJ, Williams, Webb and Fullagar JJ concluded that there is no foundation for the writ of prohibition “unless and until it appears … that there can be no basis for the exercise of the power” although if there is such a basis but also a “real threat to apply an erroneous test or … abuse the discretion … the tenor of the writ might perhaps be moulded”. [118]

     117. Dunghutti at [39]

     118. The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd at 117 - 118

127. The first basis upon which an injunction is sought is the foreshadowed reliance on the Warning Letter or Warning Decision and the Zeitz report in the letter of 8 July 2016. [119] In her written submissions, Ms Allars SC contended that it is “proposed to suspend [Dr Amos] on the basis of a decision that is void for denial of procedural fairness”. [120] To the extent that the submission is predicated on the Warning Decision and the Zeitz report being void then it fails for the reasons already given. Further Ms Richardson submitted that the relevant issue was whether the decision making process “viewed in its entirety” entailed procedural fairness (citing Ainsworth at 578). [121] Ms Richardson pointed to the ongoing exchange of submissions and counter-submission in relation to the Zeitz report as well as the specification of the basis on which the power of suspension may be exercised as negating the contention that Dr Amos has demonstrated the likelihood of a breach of procedural fairness. Leaving aside particular complaints about the specification of the basis upon which it is proposed to suspend Dr Amos which I address next, I accept Ms Richardson’s submission. In particular, the correspondence does not suggest that the LHD is proposing to consider the content of, or conclusions in, either the Zeitz report or the Warning Letter as anything more than evidentiary material which Dr Amos is able to challenge. In this further respect the claim for an injunction fails.

     119. See [54]

     120. Plaintiff’s submissions at [6.1]

     121. See [118]

128. In her written submissions, Ms Allars SC identified the complaints in the letter of 13 July 2016 about the letter of 8 July 2016 as the basis for contending that it was sufficiently likely that a decision to suspend Dr Amos would involve a breach of procedural fairness. [122] It was said that the LHD proposes to suspend Dr Amos on “the basis of unspecified complaints and unidentified alleged conduct”. [123] Ms Allars SC’s written submissions were prepared prior to the letter of 26 July 2016, which sought to address those concerns. [124] Nevertheless, in oral submissions Ms Allars SC maintained the points raised in the letter of 13 July 2016 and what was said to be a failure by the LHD to disclose “significant, relevant and possibly adverse material”, [125] being a report said to have been prepared by Ms Victoria Hiley following her investigation into the incident on 3 December 2015 referred to in [12] (the “Hiley report”). Dr Amos is aware of the existence of the Hiley report because he has sought its disclosure under the Government Information (Public Access) Act 2009 (NSW) but only obtained a redacted copy which disclosed nothing of substance. [126] I will deal with these complaints in turn.

     122. See [59] to [66]

     123. Plaintiff’s submissions at [6.3]

     124. See [59] to [66]

     125. Transcript 27/7/2016 at p 40.22

     126. Exhibit B

129. The first complaint in the letter of 13 July 2016 concerned the alleged failure of the letter of 8 July 2016 to particularise the basis for concluding that with Patient 2, Dr Amos “refus[ed] to adequately considered the opinions of [his] peers despite repeated representations”. However, the letter of 13 July 2016 traced this observation to statements made by Associate Professor Zeitz and addressed the contention on the basis that it was a reference to Dr Flynn’s claim that Dr Amos ignored his repeated requests to transfer Patient 2 to the “Cath lab”. The Chief Executive’s letter of 26 July 2016 did not respond to this. I understand that to be an acknowledgement that Dr Amos’ solicitors had correctly understood the complaint (and had responded to it by contending, inter alia, Dr Flynn was not a “peer”). If this understanding of the letter of 8 July 2016 is incorrect then it might constitute a basis for impugning any decision that might ultimately be made to suspend Dr Amos. However, no basis for granting any relief in respect of this matter at this stage has been made out.

130. The second complaint noted in the letter of 13 July 2016 concerned the proposed reliance on the Zeitz report, [127] a matter I have already addressed. The third complaint noted in the letter of 13 July 2016 was the alleged failure of the Chief Executive to identify the “other incidents” referred to in his letter of 8 July 2016. [128] Those incidents were identified with particularity in the letter of 26 July 2016. [129] The fourth complaint was that the reference in the letter of 8 July 2016 to a “pattern of behaviour” was unspecified and only tied to the one incident namely the treatment of Patient 2, [130] and the fifth complaint concerned the reference to Dr Amos having an “[in]ability to reflect on the impact of [his] behaviour”. These complaints are addressed in the passage from the letter of 26 July 2016 set out in [71]. The sixth complaint concerned the inadequacy of the time given to respond. [131] This complaint has been addressed by the passage of time since then including since the letter of 26 July 2016 was sent. There is no reason to conclude that if a reasonable request for more time is made then it will not be provided.

     127. See [61]

     128. See [54] and [62]

     129. See [69]

     130. See [63]

     131. See [65]

131. Finally, Ms Allars SC’s reference to the alleged failure of the Chief Executive to disclose “significant, relevant and possibly adverse material” is an echo of the reference by Brennan J in Kioa v West (1985) 159 CLR 550 to a decision maker affording an affected person the opportunity to address adverse material that is “credible, relevant and significant” to the decision under consideration. [132] This statement was further considered in Applicant VEAL of 2002 v Minister for Immigration and Multicultural Affairs [2005] HCA 72; (2005) 225 CLR 88 (“Applicant VEAL”) where, at least in an immigration context, it was held that such an opportunity should be afforded in respect of material that could not be “dismissed from further consideration by the decision maker before making the decision” and that this conclusion was not affected by the decision maker stating in their final decision that they did not rely on it. [133] It is not clear how this aspect of Applicant VEAL can be reconciled with the statement in SZSSJ at [83] that “[o]rdinarily, there is no requirement that the person be notified of information which is in the possession of, or accessible to, the repository but which the repository has chosen not to take into account at all in the conduct of the inquiry” unless that is a reference to a choice made during the course of the inquiry as opposed to a choice made at its conclusion.

     132. Supra at 629; Ms Allars SC also referred to Minister for Immigration and Ethnic Affairs v Taveli & Ors (1990) 23 FCR 162 which also addressed the statement by Brennan J in Kioa v West (1985) 159 CLR 550

     133. Applicant VEAL at [17]

132. It is not necessary to consider this further because there is no evidentiary basis for concluding that there is a likelihood that the LHD will act inconsistently with Applicant Veal. To the contrary, the Chief Executive, who appears to be vested with the responsibility to make the decision, has stated that he has chosen not to consider certain material and has disclosed it. This is consistent with Applicant Veal. As for the Hiley report, there is no evidence that it is before the Chief Executive in any relevant sense. The letter of 26 July 2016 suggests that the Chief Executive accepts he has an obligation to disclose such material.

133. It follows that Dr Amos is not entitled to any relief in respect of the consideration being given to his suspension.

Section 99A

138. The seventh order sought by Dr Amos is an injunction restraining the Chief Executive from taking any action to discharge his duty under s 99A of the HSA to make a report in relation his conduct “without affording [Dr Amos] procedural fairness”.

139. It was debated during the hearing whether or not procedural fairness must be afforded to a visiting practitioner (including a VMO) before a report is made concerning them under s 99A of the HSA. [134] Ms Richardson contended that any such obligation is implicitly excluded as the obligation to report is mandatory once a suspicion is formed and the statutory provisions governing the investigation by the “relevant professional council” will ensure that procedural fairness is afforded. [135] In a submission made after the hearing, Ms Richardson fairly conceded that in Tuch v South Eastern Sydney and Illawarra Area Health Service [2009] NSWSC 1207 (“Tuch”) at [395], Johnson J found to the contrary in relation to another provision of the HSA which is not relevantly different, namely 117A. Nevertheless, Ms Richardson submitted that this aspect of Tuch was wrong and should not be followed.

     134. See [77]

     135. Citing Cornall v AB (A Solicitor) [1995] 1 VR 372

140. It is not necessary to address this submission. In light of the findings at [131] to [136] it follows that, even if s 99A is only invoked if procedural fairness is afforded, there is no proper basis for concluding at this point that it will not be afforded.

Relief

141. It follows from the above that there will be an order granting Dr Amos an extension of time under UCPR 59.10(2) to seek review of the Warning Decision, [136] but the summons will be otherwise dismissed. Further, it is appropriate that the Court now order that the interlocutory regime agreed upon on 28 July 2016 come to an end. [137] I will delay that coming into effect by a few days to allow the parties a short time to consider their position and, if appropriate, apply for its extension.

     136. See [89]

     137. See [67]

142. In relation to costs, the appropriate order appears to be that Dr Amos pay the First Defendant’s costs of the proceedings and there be no order as to the Second Defendant’s costs. I will make those orders but if either party seeks to vary them they can apply within the time provided for in UCPR 36.16(3A).

143. Accordingly, the Court orders:

1. Pursuant to Uniform Civil Procedure Rule 59.10(2) the time in which the Plaintiff can seek review of the decision made on 4 March 2016 to issue him a warning be extended up to and including 5 July 2016;

2. The proceedings be otherwise dismissed;

3. With effect from 5pm on Friday, 27 August 2016 the parties be relieved from further compliance with the undertakings given to the Court on 28 July 2016;

4. The Plaintiff pay the First Defendant’s costs of the proceedings; and

5. There be no order as to the Second Defendant’s costs of the proceedings.

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Endnotes

Amendments

23 August 2016 - minor typographical errors

Decision last updated: 23 August 2016