Chowdhury v Health Care Complaints Commission
[2010] NSWCA 56
•31 March 2010
New South Wales
Court of Appeal
CITATION: Chowdhury v Health Care Complaints Commission [2010] NSWCA 56
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 10 March 2010
JUDGMENT DATE:
31 March 2010JUDGMENT OF: Beazley JA at 1; McColl JA at 61; Young JA at 62 DECISION: 1. Appeal allowed;
2. Remit the matter for determination by the Tribunal;
3. The respondent to pay the appellant’s costs of the appeal.CATCHWORDS: PROCEDURE – appeal from decision of Medical Tribunal – Medical Practice Act 1992 – s 90 – appeal restricted to point of law - PROCEDURAL FAIRNESS – Medical Practice Act 1992 – s 64(2) – failure to warn of intention not to re-register – penalty not sought by respondent – breach of procedural fairness - PROFESSIONAL CONDUCT – whether conduct deemed unsatisfactory professional conduct or professional misconduct – most appropriate forum to assess conduct – Lindsay v Health Care Complaints Commission [2005] NSWCA 356 – whether question should be remitted to Tribunal for determination LEGISLATION CITED: Medical Practice Act 1992 CATEGORY: Principal judgment CASES CITED: Lindsay v Health Care Complaints Commission [2005] NSWCA 356
Prakash v Health Care Complaints Commission [2006] NSWCA 153
Re Doctor Tan Than Le (NSWMT, unreported, 20 September 2001)PARTIES: Swapan Chowdhury (Appellant)
Health Care Complaints Commission (Respondent)FILE NUMBER(S): CA 2009/298299 COUNSEL: P Blacket SC (Appellant)
G Furness; H Bennett (Respondent)SOLICITORS: Turner Freeman (Appellant)
Health Care Complaints Commission (Respondent)LOWER COURT JURISDICTION: Medical Tribunal of New South Wales LOWER COURT FILE NUMBER(S): 40017/2007 LOWER COURT JUDICIAL OFFICER: Staff J; Dr D Child; Dr K Ilbery; Dr M Gleeson LOWER COURT DATE OF DECISION: 10 June 2009 LOWER COURT MEDIUM NEUTRAL CITATION: HCCC v Chowdhury [2009] NSWMT
CA 40211/2009
31 March 2010BEAZLEY JA
McCOLL JA
YOUNG JA
Swapan Chowdhury v Health Care Complaints Commission
Headnote
The facts
The appellant was registered as a medical practitioner with the New South Wales Medical Board on 16 August 2000. Following a number of patient complaints, the appellant was made the subject of a performance interview and subsequent performance assessment. This assessment ruled that the appellant’s performance across a number of indicia was “unsatisfactory” and, on 25 July 2005, a number of conditions were imposed on his registration. The appellant failed to comply with these conditions.
In April 2007 the appellant failed to renew his registration, and, on 20 June 2007, the appellant’s name was removed from the Register of Medical Practitioners.
When the appellant applied for re-registration, on 4 July 2007, his application was referred to an inquiry, pursuant to the Medical Practice Act 1992, Schedule 1. The schedule 1 inquiry determined that the appellant’s application for re-registration should be refused. In reaching this decision, the inquiry considered, inter alia, the appellant’s “ongoing history of non-compliance with his registration conditions”.
The Tribunal hearing
On 29 October 2007, the Medical Tribunal gave notice of a complaint (comprising two separate complaints) received from the Health Care Complaints Commission (the respondent). The complaints concerned allegations of: first, a failure to observe proper professional boundaries with a patient; and, secondly, a contravention of the conditions to which the appellant’s registration was subject. In respect of both of these complaints, the respondent contended that the appellant’s conduct amounted to unsatisfactory professional conduct and/or professional misconduct.
Complaint one was not established. The appellant admitted complaint two, leaving the question only whether such conduct amounted to professional misconduct or merely unsatisfactory professional misconduct.
The Tribunal determined that the appellant’s conduct amounted to both unsatisfactory professional conduct and professional misconduct and ordered that he not be re-registered.
The Tribunal made orders that the complainant had been guilty of professional misconduct in respect of complaint two; that he not be re-registered; that he be prohibited from providing any health service; and that its orders could not be reviewed for a period of two years.
The appeal to this court
The appellant appealed against the orders of the Tribunal. The respondent conceded a number of the grounds of appeal, thereby establishing an error of law by the Tribunal.
Beazley JA (McColl and Young JJA agreeing):
(ii) In this case, the question of penalty and the proper characterisation of the appellant’s conduct were both more appropriately dealt with by the Tribunal.
(i) It would be inappropriate for this Court, both in the interests of the public and the interest of the appellant himself, to determine whether the appellant’s conduct constituted professional misconduct rather than unprofessional conduct as contended by the appellant.
CA 2009/298299
31 March 2010BEAZLEY JA
McCOLL JA
YOUNG JA
: This is an appeal from the Medical Tribunal of New South Wales which held that that the appellant was guilty of professional misconduct and made consequential orders including that the appellant not be re-registered as a medical practitioner. An appeal from a decision of the Tribunal is with respect to a point of law: the Medical Practice Act 1992, s 90(1)(a).
Background
2 The appellant was registered with the New South Wales Medical Board as a practitioner on 16 August 2000. He was a graduate from the All India Institute of Medical Sciences, New Dehli, and, prior to his registration in New South Wales, practised as a medical practitioner in other Australian states.
3 The appellant had come to the attention of the New South Wales Medical Board (the Board) following a number of complaints from patients. On 14 May 2004, a ‘performance interview’ was conducted with the appellant. Following from that interview, a recommendation was made to the Medical Board that the appellant participate in a Performance Assessment: see the Medical Practice Act, s 86C. That recommendation was accepted and on 18 October 2004, a performance assessment of the appellant’s professional performance was carried out by a team of medical assessors pursuant to the Medical Practice Act, s 86G.
4 The assessors considered that the appellant’s professional performance was unsatisfactory, in that it was below the standard to be reasonably expected of a practitioner of an equivalent level of training or experience in the areas of: (i) basic clinical skills; (ii) diagnostic/problem solving skills; (iii) patient management skills; (iv) interaction/communication with patients; and (v) medical records. The assessors recommended that a Performance Review Panel be convened to review the appellant’s professional performance.
5 A Performance Review Panel Inquiry (the Panel) was held pursuant to the Medical Practice Act, s 86K on 28 April 2005. The Panel concluded that the appellant’s professional performance was unsatisfactory and directed that conditions be imposed on his registration. The Panel also concluded that the appellant’s professional performance should be reassessed at a future date, pursuant to the Medical Practice Act, s 86O.
6 The conditions that the Panel directed should be imposed included spending a total of 10 sessions as an observer with an experienced general practitioner. A “session” was defined as a block of at least four hours. Thereafter, the appellant was required to meet with that general practitioner for at least one hour on a monthly basis. The appellant was also required to undertake a number of specified study programmes, including the Cognitive Institute’s Clinical Programme. In addition, the appellant was to provide various reports in relation to his performance of the conditions imposed.
7 The appellant was advised of the Panel’s decision and of the conditions imposed upon his registration, by letter dated 25 July 2005.
8 On 5 January 2006, the Board, under the hand of the Board’s Monitoring Coordinator, Scott Dowdell, wrote to the appellant advising him that the Board had not received any correspondence from him demonstrating his compliance with the conditions imposed by the Panel. Each condition was set out and the failure to comply with each condition was specified in the letter. A response to the letter was required by 13 January 2006 and Mr Dowdell’s telephone number was provided. A follow-up letter was sent on 16 January 2006, requiring response before 3 February 2006. No response was received.
9 On 23 June 2006, Mr Dowdell contacted the appellant on his mobile phone. This was a second contact by Mr Dowdell, the appellant not having returned the first telephone call. Mr Dowdell reminded the appellant of the conditions imposed on his practice and that there had been no response to the letters from the Board. It was apparent from the information the appellant gave to Mr Dowdell in the telephone conversation that he had not been complying with the conditions imposed by the Panel. In particular, the appellant had not arranged the 10 four hourly sessions with a general practitioner. Nor had he enrolled in the Cognitive Institute’s Clinical Programme, as required.
10 Mr Dowdell confirmed his telephone discussion with the appellant in a letter of the same date. He reiterated in the letter that the appellant’s solicitor should provide a response to the Board’s requests for information regarding his compliance with the conditions by 7 July 2006.
11 The appellant’s solicitors contacted the Board on 6 July 2006 and asked for an extension of time to respond to the letter. The Board granted a two week extension to 21 July 2006. This was later extended to 1 August 2006.
12 On 28 July 2006, the appellant’s solicitors provided the Board with a letter from Dr Samir Benjamin, consultant psychiatrist, who had seen the appellant on 26 July 2006 for a psychiatric assessment. Dr Benjamin diagnosed the appellant as having an “Adjustment Disorder with Depressed Mood (moderate to severe)”. Dr Benjamin said that the appellant was, at that time, psychologically unwell and unfit to deal with the litigation, or give appropriate instructions to his solicitor. The letter advised that the appellant had been prescribed antidepressant medication. Dr Benjamin considered the appellant would be unfit to give instructions or attend court for the next six to eight weeks.
13 The appellant’s solicitors also provided a letter from a Dr Bahtia, confirming that the appellant had been working under his mentorship and supervision since March 2006, although it should be noted that that mentorship and supervision was not in accordance with the conditions imposed by the Panel.
14 On 18 August 2006, Dr Benjamin informed the appellant’s solicitors that his mental state had significantly improved and, with their assistance, he would now be capable of responding to the Board’s request to produce documents and provide answers to a complaint that had been lodged by a patient which the Board was investigating. That letter was forwarded to the Board.
15 However, prior to that, on 15 August 2006, the Board resolved to refer the appellant to a s 66 Inquiry. Pursuant to the Medical Practice Act, s 66(1), the Board:
“… must, if at any time it is satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied that the action is otherwise in the public interest:
(b) impose on a registered medical practitioner’s registration such conditions relating to the practitioner’s practising medicine as the Board considers appropriate.”(a) by order, suspend a registered medical practitioner from practising medicine for such period (not exceeding 8 weeks) as is specified in the order, or
16 A s 66 Inquiry was conducted on 19 September 2006. The Inquiry ascertained that there were reasons the appellant had not been complying with the conditions imposed in July 2005 (this seems to have been a reference not only to the appellant’s mental condition, but also to the fact he was no longer engaged in general practice). Notwithstanding the improvement in the appellant’s mental condition, the Board determined there should be a detailed psychiatric assessment carried out by a Board-nominated psychiatrist. The conditions already imposed upon the appellant’s practice were amended, so as to require him to undergo the psychiatric assessment.
17 That assessment was carried out by Dr Westmore on 27 September 2006. In his report dated 3 October 2006, Dr Westmore stated, inter alia:
“I did not think that when I examined him on 27 September 2006 that [the appellant] was suffering from a psychiatric condition which would interfere with his ability to practice medicine. I do note however that in the past it is probable that he has been depressed and that may have interfered with his ability to practice medicine. I note that an inquiry has revealed that he has had problems both with performance and with his communication skills.
I am unable to say what his base line medical and communication skills are, but it is likely when he became depressed those skills, if already compromised, were further compromised.
If [the appellant] is allowed to continue to practice medicine then I would be strongly recommending that he be offered the support and supervision by the Medical Board, via the impaired registrants’ panel.”…
18 At its meeting on 21 November 2006, and after considering Dr Westmore’s report, the Board resolved to refer the appellant to an Impaired Registrants Panel Inquiry. That Inquiry considered the appellant would benefit from inclusion within the Board’s Health Programme. The appellant, at that time, agreed to further conditions being imposed on his registration, including a restriction to working only as a cosmetic physician, skin cancer surgeon and “sedationist”.
19 The appellant’s registration fell due for renewal on April 2007. On 20 June 2007, the appellant’s name was removed from the Register of Medical Practitioners, as he had failed to renew his registration.
20 On 4 July 2007 the appellant applied for re-registration.
21 On 10 July 2007, the Board’s Conduct Committee determined to refer the appellant’s application for re-registration to an Inquiry pursuant to the Medical Practice Act, Sch 1. Schedule 1, Pt 3, cl 10 provides:
- “If the Board is not satisfied as to the eligibility of an applicant to be registered after considering the application for registration, the Board is to hold an inquiry under this Part for the purpose of satisfying itself as to eligibility.”
22 Schedule 1, Pt 5, cl 28 provides for a practitioner’s entitlement to re-registration if a fee is paid. The entitlement to re-registration is an entitlement to registration on the same terms and subject to the same conditions as applied to the practitioner’s registration immediately before the removal of his or her name from the Register: cl 28(4). However, the Board may refuse to register a person under cl 28 if it is satisfied that the person is not competent to practice medicine, or is not of good character: cl 28(5).
23 The Inquiry determined that the appellant’s application for re-registration should be refused. In reaching this decision, the Inquiry considered that the appellant’s “ongoing history of non-compliance with his registration conditions” raised “profound issues with regard to his application for re-registration”. The Inquiry also considered that the appellant’s:
- “… deliberate non-compliance together with his oral evidence and the documentary evidence available to the Inquiry engage the ‘competence’ and ‘good character’ requirements of the Act.”
24 The Inquiry’s decision in respect of re-registration was made notwithstanding that Dr Westmore, in a second report dated 8 August 2007, had stated that there did not appear to be “any obvious psychiatric reasons why” the appellant “could not be registered as a medical practitioner”.
The Medical Tribunal proceedings
25 On 29 October 2007, the Medical Tribunal gave formal notice of a complaint (comprising two separate complaints) received from the Health Care Complaints Commission (the respondent). Complaint one concerned allegations of a failure to maintain proper professional boundaries with a patient. Complaint two alleged that between 19 July 2005 and 19 September 2006, the appellant had contravened conditions to which his registration was subject. The respondent contended that in respect of both complaints the appellant’s conduct amounted to unsatisfactory professional conduct and/or professional misconduct.
26 Unsatisfactory professional conduct is defined in the Medical Practice Act, s 36 to include, inter alia:
“ (a) Conduct significantly below reasonable standard
Any conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
…
Any contravention by the practitioner (whether by act or omission) of a condition to which his or her registration is subject.”(c) Contravention of conditions of registration
27 Professional misconduct of a registered medical practitioner is defined in the Medical Practice Act, s 37 as follows:
“ 37 Meaning of ‘professional misconduct’
For the purposes of this Act, professional misconduct of a registered medical practitioner means:
of a sufficiently serious nature to justify suspension of the practitioner from practising medicine or the removal of the practitioner’s name from the Register.”(a) unsatisfactory professional conduct, or
(b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct,
28 The Tribunal hearing was conducted between 23 and 27 February 2009. The appellant admitted complaint two, so that the question before the Tribunal in respect of that complaint was whether the appellant’s contravention of the conditions of his registration was such that they constituted “merely unsatisfactory professional conduct”, or whether the conduct was such as to come within the ambit of professional misconduct: judgment of the Tribunal at [112]. Complaint one was fully contested.
29 The Tribunal gave its decision on 10 June 2009. It held that complaint one had not been established. In respect of complaint two, the Tribunal, at [119], found that:
- “… [the appellant] deliberately and repeatedly breached the conditions imposed upon him on 8 April 2005. Even if the Tribunal was to accept that part of the reason for his failure to comply with the conditions was that he was suffering from an adjustment disorder, this condition appears to have significantly improved by 16 February 2007 when he attended the Impaired Registrant’s Panel Inquiry. However, [the appellant] took no steps to comply with the conditions imposed by the Board, such conditions being imposed because of adverse findings in respect of his competence as a medical practitioner.”
30 The Tribunal determined, at [120], that the appellant’s conduct, “in breaching the conditions imposed, effective from 19 July 2005” amounted both to unsatisfactory professional conduct and professional misconduct. In reaching this finding, the Tribunal applied the principles stated in Re Doctor Tan Than Le (NSWMT, unreported, 20 September 2001), approved by this Court in Prakash v Health Care Complaints Commission [2006] NSWCA 153. In Prakash, the Court observed, at [74]:
- “When conditions are imposed, as they were here, for restoration to practise, those conditions must be scrupulously observed, as observed in Re Dr Than Le …”
31 The Tribunal then moved to a consideration of the orders that ought to be made. It observed, at [125], that the appellant had admitted complaint two and:
- “… acknowledged that his failure to comply with the conditions imposed upon him would inevitably lead to his being ineligible for registration as a medical practitioner”.
32 The Tribunal noted that, nonetheless, the appellant had sought to persuade the Tribunal that he now had a genuine understanding of the inappropriateness of his behaviour, that he had developed insight into his behaviour and that he was contrite.
33 Although before the Tribunal the respondent challenged the genuineness of the contrition articulated by the appellant, the Tribunal expressed the view that the appellant had accepted that it was wrong for him to behave in the way he did. The Tribunal noted the appellant’s evidence that he would accept whatever restrictions or conditions it considered appropriate to impose upon him. The Tribunal continued, at [127], that it was mindful of the appellant’s evidence:
- “… that he was suffering from depression and what he described as active/passive syndrome during the period that he chose to ignore the conditions”.
The Tribunal added, however, that:
- “This evidence has to be balanced against the evidence given by the Board’s psychiatrist in the Schedule 1 Inquiry”.
34 At [128], the Tribunal stated that it considered that the appellant’s conduct was sufficiently serious to order that he not be re-registered: see the Medical Practice Act, s 64(1). The Tribunal, at [131], then concluded:
- “Given that [the appellant] failed to comply with the conditions imposed upon him by the Board and has now not practised general medicine for a period of over three years, the Tribunal finds that [the appellant] is not competent to practice medicine. The wilful breach of conditions imposed by the Board is regarded by the Tribunal as a most serious matter.”
35 The Tribunal then made orders that the complainant had been guilty of professional misconduct in respect of complaint two; that he not be re-registered; that pursuant to the Medical Practice Act, s 64(2A), he be prohibited from providing any health services or specified health services; and that an application for review of those orders could not be made until the expiration of two years from the date the Tribunal reserved its decision in the matter, being Friday, 27 February 2009.
The appeal to this Court
36 In his amended notice of appeal, the appellant appealed against the orders of the Tribunal on the following bases. First, he alleged that as the respondent had not sought orders for deregistration in respect of complaint two, the Tribunal erred in failing to warn him that it was proposing to make orders more onerous than those sought; secondly, that he was denied procedural fairness in the Tribunal not warning him that it would not register him pursuant to the Medical Practice Act, s 64(2) in circumstances where a fine only had been sought by the respondent. The appellant also complained that, in circumstances where the respondent had not made any submission that he posed a substantial risk to the health of members of the public, and without there being any evidence or factual determination to support such a finding, there was no basis upon which the Tribunal could make an order under the Medical Practice Act, s 64(2A) prohibiting him from providing health services. He also raised a number of grounds as to the penalty imposed.
37 The respondent conceded that none of the protective orders made by the Tribunal (that is, the order he not be re-registered; that he be prohibited from providing health services; and that there be no review for two years) had been sought by it in relation to complaint two. It conceded, therefore, that the appellant was not given an opportunity to be heard as to whether those orders were appropriate in relation to complaint two. It had so informed the appellant by letter dated 9 November 2009. The respondent accepted, therefore, that there needed to be a fresh determination of what, if any, protective orders should be made in relation to complaint two.
38 Having considered the material before the Tribunal, as well as the transcript of the Tribunal hearing, it is clear that this concession is properly made. Accordingly, (with a qualification in respect of ground 4) it is not necessary to deal with grounds 1-4, 7 and 9 in the amended notice of grounds of appeal.
39 The appellant articulated the issues which remained to be determined in the appeal as follows:
1. In determining what penalty to impose in respect of complaint two, the Tribunal took into account not only that the appellant had failed to comply with the conditions of his registration, but that the appellant had not practiced medicine for over three years, and found that he was thereby not competent to practice medicine: see Tribunal judgment at [131]. However, complaint two did not allege that the appellant was not competent to practice medicine.
2. There was no evidence to support the Tribunal’s finding, at [131], that the appellant’s breaches of the conditions of his registration were wilful.
3. The Tribunal failed to give any reasons to support its finding that the appellant’s breaches were wilful.
5. In determining the characterisation of the appellant’s conduct as professional misconduct, the Tribunal took into account an irrelevant consideration in that it had regard to the appellant’s mental condition after the period of the breach alleged in the complaint: see Tribunal judgment at [119].4. The Tribunal, at [125], stated that the appellant had acknowledged that his failure to comply with the conditions of his registration would inevitably lead to his de-registration or his being ineligible for registration as a medical practitioner, when the appellant had made no such acknowledgement.
40 The first of these issues was in fact a recasting of ground 4 of the amended notice of appeal. The respondent had already conceded that in making a finding that the appellant was not competent to practise medicine, the Tribunal had denied him procedural fairness. The respondent again properly conceded that complaint two had not contained an allegation that the appellant was not competent to practise medicine and that the Tribunal, in relying upon that matter when determining what penalty ought to be imposed, had thereby erred in law in a way that materially affected its decision.
41 The respondent also accepted that the challenge to the Tribunal’s decision (see issue 5 above) was also made out. This concession was also rightly made. The period specified in the complaint during was 19 July 2005 to 19 September 2006. The fact that the appellant’s mental condition had appeared to have significantly improved by 16 February 2007 was not relevant to the characterisation of the complaint with which he was charged. However, it is apparent that the Tribunal took this latter period into account in characterising his conduct, as, having noted that his mental condition appeared to have significantly improved by 16 February 2007, it stated, at [119]:
- “[The appellant] took no steps to comply with the conditions imposed by the Board, such conditions being imposed because of adverse findings in respect of his competence as a medical practitioner.”
42 The appellant has thereby established error of law by the Tribunal in these two respects. In those circumstances, and having regard to the opinion I have formed as to the proper disposition of these proceedings, it is not necessary to consider the other issues raised by the appellant: see [39] above.
43 This Court’s power on an appeal from the Tribunal are prescribed by the Medical Practice Act, s 91(1), which provides:
- “(1) In determining the appeal, the Supreme Court may:
- (a) dismiss the appeal, or
- (b) make such order as it thinks proper having regard to the merits of the case and the public welfare, and in doing so may exercise any one or more of the powers of the Tribunal under this Act.”
44 As the errors I have identified were integral both in the decision the Tribunal made as to the characterisation of the appellant’s conduct and as to the penalty that ought to be imposed, it is clearly inappropriate to dismiss the appeal: s 91(1)(a). As I have indicated, the respondent’s position from the outset of the appeal was that the matter should be remitted to the Tribunal on the question of penalty. The respondent submitted that if error was established on the remaining issues, the question whether the appellant was guilty of unsatisfactory professional conduct or professional misconduct in respect of complaint two should also be remitted.
45 However, the appellant urged this Court to make its own determination as to the proper characterisation of the appellant’s conduct, that is, as unsatisfactory professional conduct, or as professional misconduct. In urging this course upon the Court, the appellant submitted that the proper finding on the evidence was that his conduct amounted to unsatisfactory professional conduct, not professional misconduct. The appellant submitted the Court should make a finding of unsatisfactory professional conduct, vacate the orders made by the Tribunal and reprimand him. It would then be for the appellant to apply to the Board if he decided to seek re-registration.
46 The respondent submitted that on the evidence, the appellant should be found guilty of professional misconduct and in this regard there was ample evidence before the Tribunal to support that finding. However, it submitted that the preferable course was for both issues, that is, the characterisation of the appellant’s conduct and penalty, to be remitted to the Tribunal. The respondent submitted that although the evidence was sufficient to support the finding of professional misconduct, the Tribunal, constituted by a panel, some of whom were medical practitioners, was the most appropriate body to determine that question.
47 In support of this submission, the respondent referred to the remarks of Hunt AJA (Mason P and Hodgson JA agreeing) in Lindsay v Health Care Complaints Commission [2005] NSWCA 356:
[46] In my opinion, this Court would have to act very cautiously in making its own characterisation of conduct established to the satisfaction of the Tribunal where there was room for different views on the subject. The Medical Tribunal is a specialist tribunal, being constituted for the purpose of conducting inquiries by a District Court judge, two registered medical practitioners and one lay person ( Medical Practice Act , ss 147–148). This Court is not in the position to apply such medical expertise, although there may perhaps in some cases be a clear and unanimous view expressed by medical experts who gave evidence in the proceedings before the Tribunal on which this Court could act.”“[45] There are cases in which this Court has set aside findings by the Tribunal characterising the conduct of medical practitioners in a particular way — for example, Qidwai v Brown [1984] 1 NSWLR 100 at 102 (departure from an accepted practice is not necessarily misconduct in a professional respect); Pillai v Messiter [No 2] (1989) 16 NSWLR 197 at 200, 208-210 (neither mere professional incompetence nor a deficiency in practice constitutes misconduct in a professional respect). In each case, it was a question of law as to whether there was evidence to support the characterisation made by the Tribunal. That is not the same as this Court determining for itself whether particular conduct constitutes professional misconduct or unsatisfactory professional conduct, where the particular conduct may or may not do so according to the particular circumstances in which the conduct occurred.
48 The question whether the failure of the appellant to comply with the conditions of his practice constituted professional misconduct depended very much upon whether the failure was wilful, in the sense that it was deliberate. The appellant’s case was that, contrary to the finding of the Tribunal, his failure to comply with the conditions of his registration could not have been wilful or deliberate, because at the time he was suffering from a depressive illness. He said that one of the manifestations of his illness was that he responded to matters he was required to attend to, such as compliance with the conditions of his practice, by refusing to comply. He described this behaviour as an exhibition of a “passive/aggressive syndrome”.
49 The evidence from which this Court could make that determination is confined to the evidence before the Tribunal, including the transcript of the appellant’s oral evidence.
50 The medical evidence certainly established that at one point, the appellant was suffering from a mental illness. As I have already indicated, this was first diagnosed by Dr Benjamin in late July 2006. Dr Benjamin considered that the appellant suffered from an “Adjustment Disorder with Depressed Mood (moderate to severe)”, which he attributed as being possibly due to “the current legal proceedings”. That was apparently a reference to the complaint which had been made by the patient and which became the subject of complaint one before the Tribunal. However, this evidence does not assist this Court, as a non medical body, in determining whether the appellant’s failure to comply with the conditions of his registration was, nonetheless, wilful.
51 Dr Westmore, following upon his assessment on 27 September 2006, diagnosed the appellant as suffering from “Depression (resolving or resolved)”. Dr Westmore stated that the appellant’s positive response to antidepressant medication suggested that he might have “suffered a major depressive illness in the past”. Dr Westmore was of the opinion that at the time of his assessment, the appellant was not suffering from a psychiatric condition that would interfere with his ability to practice medicine. Dr Westmore noted, however, that it was probable the appellant had been depressed in the past and that that may have interfered with his ability to practice medicine.
52 In his follow-up report of 8 August 2007, Dr Westmore was of the opinion that the previous diagnosis appeared to be confirmed. During the course of his consultation with the appellant on 7 August 2007, Dr Westmore questioned him as to whether he had been meeting the requirements as set out by the Board. The appellant provided a series of responses to Dr Westmore’s questions. Although the appellant’s explanation, as noted in the report, tends to support his contention that his failure was not wilful, such evidence has to be treated with some care, as the questions are not recorded and the appellant’s responses are given in the third person.
53 It was the appellant’s contention that he was suffering from a “passive/aggressive syndrome” as part of his depressive illness and that was the reason why he had not complied with the conditions of his registration. The respondent refuted that the appellant suffered from any such condition, relying upon the appellant’s own evidence provided in his statement to the Tribunal, and in his cross-examination, to demonstrate that the appellant’s conduct in not complying with the conditions of his registration was deliberate.
54 In his statement to the Tribunal, the appellant provided an explanation as to why he had failed to comply with each of the conditions that had been imposed. Those explanations were as follows:
“31. I admit that I did not comply with the conditions imposed on my Registration. I accept that I received numerous letters from the Board in relation to my failure to comply with the conditions between 2005 and 2008. I also spoke with various representatives of the Board regarding the conditions during that time.
32. In relation to the first condition which required that I spend ten sessions as an observer with an experienced general practitioner (approved by the Board) and provide a report detailing specific issues to the Board, (Complaint Two, particular one of the Amended Complaint) I admit that I did not comply with the condition.
33. In 2004, I made a decision to practise only cosmetic medicine and I have not practised as a general practitioner since mid 2005. I did not, at the time that the condition was placed on my Registration understand the need for me to spend time with a general practitioner when I was practising only in the area of cosmetic surgery. I recall advising Dr Westmore (my Board appointed psychiatrist) that I had made this decision.
34. I did however, spend some time as an observer with a plastic surgeon in Bankstown. I was of the view that would be a better use of my time and would better assist me. I advised the Board that I was undertaking that observation, but did not receive a response from the Board.
35. I also spent 40 hours with a senior skin cancer surgeon practising in a skin cancer clinic as I believed that would be more beneficial to my practice. Unfortunately the Board did not accept that as an appropriate alternative.
36. In relation to the second condition imposed on my Registration and which required me to meet with the general practitioner for one hour on a monthly basis for six months to discuss various aspects of practice, (Complaint Two, particular two of the amended complaint) I refer to paragraphs 33 to 35 above. In my view, I did comply with that condition in that I spent more than 40 hours with a general practitioner observing his practice. He also supervised a limited amount of my practice.
37. In relation to the third condition imposed on my Registration and which required that I attend sessions of the Annual Revision Seminar in February 2006 held by the RACGP, NSW Faculty, (Complaint Two, particular three of the Amended Complaint) I admit that I did not comply with this condition.
38. As Dr Westmore advised and, as is evident in the Medical Board’s letter of 30 March 2007, I was only to practice medicine in the fields of cosmetic medicine, skin cancer surgery and as a sedationist. I worked according to this condition.
39. As I was no longer practising as a general practitioner and, given the Medical Board’s letter dated 30 March 2007 I did not at the time, understand a need for me to attend such seminars I did however, attend various other seminars in relation to cosmetic medicine and I advised the Board that I had done so.
40. In relation to the fourth condition imposed on my Registration and which required me to undertake all components of the Cognitive Institute’s Clinical Communication Program, (Complaint Two, particular four of the Amended Complaint) I admit that I did not comply with this condition.
41. At the time I initially attempted to register for the course, it clashed with other commitments I had previously made. That is, I was due to be in Prague at a training conference at the time the course was next scheduled to occur. When I did apply for the Cognitive Institute course in 2006 it was booked out. I have made more recent attempts to attend the non-clinical aspects of the course.
42. I however did propose to the Board an alternative communications course in anaesthetic medicine which was based in Melbourne. The Board did not accept that as an appropriate alternative course.
43. In relation to the fifth condition imposed on my Registration and which required that I undertake an Interactive Risk Management Program with MDASA (Complaint Two, particular five of the amended complaint) I admit that I did not comply with this condition. The reason for my not competing that course was because I changed Medical Defence Organisations at the time. I sought to arrange with my new MDO a similar risk assessment program in 2005. Unfortunately that did not proceed because I had left Simply Beautiful at that stage.
44. In relation to the sixth condition imposed on my Registration and which required that my performance be reassessed, I admit that I did not comply with this condition.
45. I cannot adequately explain my failure to comply with the conditions except to the extent I have in the foregoing paragraphs. I have not worked for some time and I have had considerable opportunity to reflect on my conduct. I now realise that the Board’s role is to protect the public and I accept its reasons for placing conditions on my Registration. I have come to realise the gravity of my conduct in failing to comply with the conditions.
46. With the benefit of hindsight, working 16 hours per day over an extended period of time and being clinically depressed, as I became, impacted significantly on me and my thinking at the time. Moreover, the initial anti-depressant medication that I was prescribed, Lexapro, which I took for 12 months, left me unable to function properly. That medication was changed by my treating psychiatrist to Prozac and I have improved significantly.
47. At the time of the Performance Review Panel Inquiry I was clinically depressed. My treating psychiatrist was Dr Samir Benjamin who diagnosed me with adjustment disorder with depressed mood. At that time I also saw Ms Diane Brigden, a clinical psychologist.
49. I believe that my mental well-being may have contributed to my ability to clearly see and accept the Board’s role and its decisions regarding my Registration. I now believe that my mental health has improved significantly.”…
55 The appellant was cross-examined in detail on his statement. It was during the course of cross-examination that the appellant, for the first time, made reference to having possibly suffered from “passive/ aggressive” syndrome. He said his way of dealing with the conditions imposed on his registration was “directly saying, ‘No, I won’t do it’”. However, in cross-examination, the appellant attributed the major part of his failure to comply with the Board’s conditions to his depression and the medication, Lexapro, that he was then prescribed. He said the medication made him “completely obtunded” and that he did not have energy or motivation to do anything.
56 The respondent contended to this Court that the appellant’s self-diagnosis of a “passive/aggressive syndrome” was no more that an attempt to explain away his misconduct and was, in any event, contradictory to the main thrust of his evidence as contained in his statement to the Tribunal.
57 There was no medical evidence that the appellant’s depressive condition had, as one of its features, a “passive/aggressive syndrome”. Nor was there any medical evidence that the appellant’s depressive condition was the reason he was unable to comply with the conditions of his registration. Although the Tribunal made reference to the appellant’s assertion that he suffered from such a condition, it did so in terms which did not endorse any medical basis for it. Rather, the Tribunal, at [127], referred to “what [the appellant] described as active/passive syndrome”.
58 This Court is not a specialist tribunal and has no medical knowledge of its own. In the circumstances, it would be inappropriate for this Court, both in the interests of the public and the interests of the appellant himself, to attempt to second-guess whether there is a known medical condition such as “passive/aggressive syndrome”, either independently of or as part of a depressive condition, or whether it was the cause of the appellant’s failure to comply with the conditions of his registration and, even if that was the case, whether his failure to comply was wilful. I should also add as part of that consideration, that the Tribunal will have to determine how to assess the appellant’s evidence. In that regard, the Tribunal will have the advantage of seeing and hearing the appellant personally, an advantage this Court does not have.
59 For these reasons, I am of the opinion the matter should be remitted to the Tribunal for redetermination, not only in respect of the question of penalty, but also in respect of the proper characterisation of the appellant’s conduct.
60 Accordingly, I propose the following orders:
1. Appeal allowed;
3. The respondent to pay the appellant’s costs of the appeal.2. Remit the matter for determination by the Tribunal;
61 McCOLL JA: I agree with Beazley JA and the orders her Honour proposes.
: I agree with Beazley JA.
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