Della Bruna v Health Care Complaints Commission

[2025] NSWCA 105

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Della Bruna v Health Care Complaints Commission [2025] NSWCA 105

Hearing dates:

10 April 2025

Date of orders:

16 May 2025

Decision date:

16 May 2025

Before:

Bell CJ and Kirk JA at [1];
Adamson JA at [104]

Decision:

(1)   Grant leave to appeal in relation to ground 7.

(2)   Appeal allowed.

(3)   The orders of the Tribunal made on 24 October 2024 are set aside.

(4)   The matter is remitted to the Tribunal, to be differently constituted.

(5)   The respondent is to pay the appellant’s costs of the appeal.

Catchwords:

OCCUPATIONS – Health practitioners – Professional misconduct – Where appellant prescribed somatropin off-label – Where clinical records inadequate – Requirement for NSW Civil and Administrative Tribunal to provide adequate reasons – Requirement to afford procedural fairness by notifying appellant of allegations through amended complaint – Where findings of fact contradicted by contemporaneous clinical records

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW),
ss 38, 57, Sch 5 Pt 6 cll 12-13, 29

Evidence Act 1995 (NSW), s 140

Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW), Sch 1 [1A], [5A]

Poisons and Therapeutic Goods Act 1966 (NSW), s 8

Supreme Court Act 1970 (NSW), s 48

Health Practitioner Regulation (New South Wales) Regulation 2016 (NSW)

Health Practitioner Regulation National Law (NSW) 2009, ss 3A, 3B, 139B, 139C, 139E, 140, 144B, 145C, 145D, 150, 165, 165B, 165M, Pt 8 Div 2, Pt 8 Div 3

Cases Cited:

Allianz Australia Insurance Ltd v Rutland [2015] NSWCA 328; (2015) 73 MVR 211

Bisley Investment Corporation Ltd v Australian Broadcasting Tribunal (1982) 59 FLR 132

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7

Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280

Commissioner for ACT Revenue v Alphaone (1994) 49 FCR 576

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148

D’Amore v Independent Commission Against Corruption [2013] NSWCA 187; (2013) 303 ALR 242

De Gruchy v The Queen (2002) 211 CLR 85; [2002] HCA 33

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088

Gautam v Health Care Complaints Commission [2021] NSWCA 85

Ghosh v Health Care Complaints Commission (2020) 104 NSWLR 107; [2020] NSWCA 353

Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77

Jones v Sutherland Shire Council [1979] 2 NSWLR 206

Kanda v Government of Malaya [1962] AC 322

Kavieris v Health Care Complaints Commission [2025] NSWSC 20

Kumar v Legal Services Commissioner [2015] NSWCA 161

Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610

McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609

Minister for Home Affairs v Ogawa (2019) 269 FCR 536; [2019] FCAFC 98

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231

Onassis v Vergottis [1968] 2 Lloyd’s Rep 403

Pillai v Messiter (No 2) (1989) 16 NSWLR 197

Plomp v The Queen (1963) 110 CLR 234; [1963] HCA 44

Politis v Commissioner of Taxation (Cth) (1988) 16 ALD 707

Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; [2004] HCA 42

Seablest Pty Ltd v Smith (1996) 91 LGERA 1

SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9

The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816

Watson v Foxman (1995) 49 NSWLR 315

Weaver v The Law Society of NSW (1979) 142 CLR 201; [1979] HCA 35

Willmot v Queensland [2024] HCA 42; (2024) 98 ALJR 1407

Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43

Texts Cited:

N/A

Category:

Principal judgment

Parties:

Dr Albina Della Bruna (Appellant)
Health Care Complaints Commission (Respondent)

Representation:

Counsel:
R Mathur SC / Z Alderton (Appellant)
Z Heger SC / D New / C Beshara (Respondent)

Solicitors:
Avant Law Pty Ltd (Appellant)
Health Care Complaints Commission (Respondent)

File Number(s):

2024/428418

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

NSW Civil and Administrative Tribunal

Jurisdiction:

Occupational Division

Citation:

[2024] NSWCATOD 164

Date of Decision:

24 October 2024

Before:

Coleman SC ADCJ, Principal Member
Dr C Badam, Senior Member
Dr C Newberry, Senior Member
S Lovrovich, General Member

File Number(s):

2022/36936

HEADNOTE

[This headnote is not to be read as part of the judgment]

These proceedings arose from a complaint filed by the Health Care Complaints Commission (the Commission) against Dr Albina Della Bruna (the appellant) in the NSW Civil and Administrative Tribunal. The disciplinary proceedings concerned the appellant’s off-label prescribing of human growth hormone (HGH) to patients. The Commission complained that the appellant inappropriately prescribed, dispensed and managed the HGH, and failed to maintain adequate records. The appellant accepted before the tribunal that she had failed to maintain adequate records.

The majority of the tribunal (Dr Badam, Dr Newberry, and Ms Lovrovich) found the appellant guilty of professional misconduct, while the presiding member (Coleman SC ADCJ) dissented, making a finding of unsatisfactory professional conduct only.

The appellant challenged the majority’s decision on various bases, including that it: (i) denied the appellant procedural fairness in finding that her objectivity was compromised by financial pressure; (ii) erred in rejecting the appellant’s oral evidence; and (iii) erred in various factual findings in relation to the extent of testing and monitoring performed by the appellant.

The Court (Bell CJ and Kirk JA, Adamson JA dissenting), allowing the appeal, held:

1. “Professional misconduct” under s 139E of the Health Practitioner Regulation National Law (NSW) 2009 means unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration: [5]-[7] (Bell CJ and Kirk JA).

   Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186, referred to.

   Pillai v Messiter (No 2) (1989) 16 NSWLR 197, not applicable.

2. Medical and lay members of tribunals must give legally adequate reasons, which are sufficient to enable a court to see whether the opinion involves any error of law. Where the nature of the issues and the potential consequences are serious, there may be little difference in substance from the duty of a court to give reasons. The Court’s review of the reasons of a decision-maker should not proceed in a manner inclined to finding error. But that does not mean the Court must strive to read the reasons in such a way as to avoid the conclusion of error. The Court should not be left to speculate about what further unarticulated reasons lie behind what tribunal members said: [9]-[16], [41], [54] (Bell CJ and Kirk JA).

   Seablest Pty Ltd v Smith (1996) 91 LGERA 1; Ghosh v Health Care Complaints Commission (2020) 104 NSWLR 107; [2020] NSWCA 353; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43; New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231; Gautam v Health Care Complaints Commission [2021] NSWCA 85; Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816; D’Amore v Independent Commission Against Corruption [2013] NSWCA 187; (2013) 303 ALR 242, cited.

3. The majority erred, and breached the requirements of procedural fairness in a material manner, by finding that the appellant’s objectivity was inhibited by a financial pressure to dispose of her HGH stockpile. This was not alleged as part of the Commission’s case where it should have been, being the Amended Complaint, nor was it stated in terms in a letter providing further particulars. The references in the Commission’s letter to parts of two reports at best made some vague and speculative wave towards there being some financial motivation of an unstated kind: [17]-[43] (Bell CJ and Kirk JA).

   Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77; Kanda v Government of Malaya [1962] AC 322; Commissioner for ACT Revenue v Alphaone (1994) 49 FCR 576; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610, referred to.

4. The majority erred by failing to provide adequate, intelligible or logical reasons for why the appellant’s oral evidence was rejected, and also failed to exercise jurisdiction insofar as it did not grapple with a substantial and clearly articulated aspect of the appellant’s case. The fact that the appellant conceded that her record-keeping was substandard did not, in itself, provide a rational reason to reject her evidence as to the nature and context of her consultations: [44]-[63] (Bell CJ and Kirk JA).

5. The majority erred in material findings of fact which were contrary to the contemporaneous clinical records: [64]-[98] (Bell CJ and Kirk JA).

Per Adamson JA dissenting:

1. The Tribunal did not err, nor breach procedural fairness, in finding that the appellant’s “objectivity” was compromised as a result of financial “pressure” to turnover her stock of Somatropin. The Commission’s case was sufficiently particularised to raise financial considerations as a motive which affected the appellant’s practice of dispensing Somatropin. Furthermore, the appellant had additional notice that the Commission placed reliance on financial considerations when it was raised in cross-examination. Consequently, the appellant was provided with a forensic opportunity in re-examination to respond to the allegations: [216]-[229] (Adamson JA).

   De Gruchy v The Queen (2002) 211 CLR 85; [2002] HCA 33; Plomp v The Queen (1963) 110 CLR 234; [1963] HCA 44; Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35; Jones v Sutherland Shire Council [1979] 2 NSWLR 206, cited.

2. The Tribunal did not err, nor was it legally unreasonable, in rejecting Associate Professor Holmes-Walker’s assessment that the appellant’s conduct fell below, but not significantly below, the relevant standard. The Tribunal’s reasons adequately explained its preference for Dr Kertesz’s and Professor’s Carter’s opinion evidence, which it was entitled to do: [276]-[278] (Adamson JA).

3. The Tribunal did not err in failing to consider a substantial and clearly articulated argument: namely whether the prescribing and dispensing of certain medication, in the quantities prescribed, was significantly below the expected standard. The Tribunal provided detailed reasoning based on the expert evidence, and it was plain from the structure and content of the Tribunal’s reasons that it had regard to all of the Principal Member’s reasons: [279]-[281] (Adamson JA).

   Dranichnikovv Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088, cited.

4. The Tribunal did not err in fact in finding that: (i) the appellant did not seek blood tests to measure the IGF-1 levels in any patients to whom she prescribed human growth hormones; and (ii) that evidence of ‘ongoing monitoring’ was ‘missing’ from the appellant’s patient records. The Tribunal was careful in its reasons to qualify its finding that the appellant failed to order tests by purpose (to determine whether there was growth hormone deficiency) and by time (before she prescribed any Somatropin): [291]-[300] (Adamson JA).

JUDGMENT

1. BELL CJ and KIRK JA: The appellant, Dr Albina Della Bruna (the appellant), prescribed and dispensed human growth hormone (HGH) to ten patients in the period June 2017 to November 2019, doing so “off-label” for reasons said to be connected to fatigue and ageing. The Health Care Complaints Commission (the Commission) brought a complaint in the Occupational Division of the NSW Civil and Administrative Tribunal alleging that this conduct, together with inadequate record keeping, constituted unsatisfactory professional conduct and professional misconduct for the purposes of the Health Practitioner Regulation National Law (NSW) 2009 (the Law). A majority of the Tribunal, writing jointly, concluded that the appellant had engaged in such professional misconduct. The majority was comprised of the two senior members of the Tribunal, who are doctors, along with a general member (the Majority). The presiding principal member of the Tribunal, Ian Coleman SC ADCJ, dissented, and would have found the appellant guilty of unsatisfactory professional conduct only. The remedial “stage 2” hearing is yet to take place.

2. The appellant has appealed. She has a right to do so on questions of law and may seek leave to do so on any other grounds: Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), Sch 5, cl 29(4)(b).

3. Her amended notice of appeal raised many grounds, but as oral argument was developed particular attention was directed to the following issues:

1. whether the Majority denied the appellant procedural fairness in finding that her objectivity was compromised as a result of financial pressure to turn over her stock of HGH (ground 5(a));

2. whether the Majority erred in rejecting the appellant’s oral evidence regarding her prescribing to and management of patients, and thereby reversed the onus of proof, constructively failed to exercise jurisdiction, denied procedural fairness and gave inadequate reasons (grounds 2, 4, 5(b) and 6, noting those grounds also raised other issues);

3. whether the Majority erred in fact in finding that the appellant did not seek blood tests to measure the IGF-1 levels in any patients to whom she prescribed HGH (ground 7, noting leave to appeal is required for this ground).

4. Success on any one of these issues would be sufficient to uphold the appeal. In our view the appellant should succeed on all three. It is unnecessary to address the remainder of the issues and grounds raised. The matter should be remitted to a differently constituted Tribunal.

5. One further significant point should also be noted at the outset. Although many grounds of appeal were raised, there was no ground relating to how both the Majority and the presiding member of the Tribunal directed themselves as to the meaning of professional misconduct. Given the importance of the topic, the Tribunal’s approach should not be left unremarked. The Majority (at [356]) followed the presiding member (at [263]) in considering that this issue turned on a standard articulated by Kirby P in Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200. Yet Kirby P’s discussion related to a past statutory scheme involving a different criterion. Under the Law the notion of “professional misconduct” is defined in s 139E. It means, in short, unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration (which can be established by the cumulative effect of more than one instance of unsatisfactory professional conduct). The notion of “unsatisfactory professional conduct” is itself defined in s 139B of the Law in relation to registered health practitioners generally, as added to by s 139C with respect to medical practitioners. In this matter the Commission had relied on two variants of unsatisfactory professional conduct, set out in s 139B(1)(a) and (l):

(a)   Conduct significantly below reasonable standard

Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner’s profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

…

(l)   Other improper or unethical conduct

Any other improper or unethical conduct relating to the practice or purported practice of the practitioner’s profession.

6. Neither set of reasons in the Tribunal referred to, let alone considered, the criterion of professional misconduct set out in s 139E in dealing with the Commission’s complaint. The section itself was only mentioned once, in passing, in the presiding member’s reasons at [2].

7. This Court has previously warned about relying on past case law relating to differently expressed statutory standards in considering whether medical practitioners have engaged in professional misconduct under the Law: Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [59]-[75] (Payne JA), note also at [4]-[20] (Basten JA), and [23] (Leeming JA agreeing with both). It appears the warning was not heeded in this matter. It is axiomatic that in considering whether or not a medical practitioner has engaged in professional misconduct the Tribunal must identify and apply the correct test. The Tribunal failed to do so here.

8. The background to the matter is set out in the reasons of Adamson JA at [116]-[171]. We will address the three issues identified above in turn. Before doing so, it is appropriate to say something as to how reasons written by non-lawyers should be read and reviewed when challenged by way of appeal or judicial review.

Reviewing reasons

9. When hearing complaints against medical practitioners the Tribunal is required to be constituted by a member of the Occupational Division of the Tribunal who is a senior judicial officer (as defined in s 165), two health practitioners selected for appointment by the relevant Council who are registered in the same health profession as the practitioner in question, and one lay person: Law, s 165B(2); CAT Act, Sch 5, cll 12-13. If the members are evenly divided on a decision (other than a decision of law) then the opinion of the presiding, legal member prevails: CAT Act, s 57(3)(a). Otherwise, for such non-legal decisions, the opinion of the majority prevails: CAT Act, s 57(1). For the Tribunal to be divided in opinion, and for the presiding judicial member to be in dissent, is relatively unusual in disciplinary matters. However, it is appropriate and important that all members diligently come to their own views.

10. It is also appropriate that when a court comes to review reasons given by members of the Tribunal who are not lawyers, that characteristic is borne in mind. In its submissions the Commission quoted a statement that a specialist tribunal “consisting of persons inexperienced in the formulation and use of legal language ought not be expected to craft reasons for judgment in the style of ‘a Brennan’ or display the verve and reasoning power of ‘a Denning’”: Seablest Pty Ltd v Smith (1996) 91 LGERA 1 at 4. So much may be accepted. Compressed reasoning, unusual structuring, infelicities of language, inaccurate use of legal phrases, or such like may simply reflect the nature, training and experience of the author.

11. Nevertheless, medical and lay members of the Tribunal are still required to give legally adequate reasons. Section 165M of the Law requires the Tribunal to “give a written statement of the decision”, which statement must set out any findings on material questions of fact, refer to any evidence or other material on which the findings were based, and give the reasons for the decision. Failure to give adequate reasons may suffice to uphold an appeal in such matters: eg Ghosh v Health Care Complaints Commission (2020) 104 NSWLR 107; [2020] NSWCA 353 at [128]-[151]. The reasons must be sufficient to enable a court to see whether the opinion does or does not involve any error of law: note analogously Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [54]; New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [71]-[73]. Given the serious nature of the issues and the potential consequences, there may be little difference in substance from the duty of a court to give reasons: Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [55].

9. The Commission sought to emphasise the oft-cited approval by a plurality of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 of statements by the Full Court of the Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 and McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616. The plurality in the High Court said (at 272, citations omitted):

it was said [in Pozzolanic] that a court should not be “concerned with looseness in the language … nor with unhappy phrasing” of the reasons of an administrative decision-maker. The Court continued: “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed [citing McAuliffe].

13. Justice Kirby made similar points in Liang at 291, also citing Pozzolanic. As his Honour said there: “The reasons under challenge must be read as a whole. They must be considered fairly”. The plurality’s judgment in Liang is consistent with taking that approach (see eg at 280).

14. In Pozzolanic the statement (at 287) about avoiding an “eye keenly attuned to the perception of error” was itself supported by a reference to an earlier judgment of Lockhart J in Politis v Commissioner of Taxation (Cth) (1988) 16 ALD 707 at 708. It is worth noting what his Honour then went on to say in that case after having deployed that phrase (ibid):

the court should approach its task sensibly and in a balanced way, not reading passages from the reasons for decision in isolation from others to which they may be related or taking particular passages out of the context of the reasons as a whole.

15. Consistently with approaching the task in a sensible and balanced way, a beneficial approach to reasons does not demand that any ambiguity be resolved in favour of the decision-maker: see SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26] (Stone J); approved eg Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union v Abigroup Contractors Pty Ltd [2013] FCAFC 148 at [190]; Allianz Australia Insurance Ltd v Rutland [2015] NSWCA 328; (2015) 73 MVR 211 at [26]; Minister for Home Affairs v Ogawa (2019) 269 FCR 536; [2019] FCAFC 98 at [116].

16. The Court’s review of the reasons of a decision-maker should not proceed in a manner inclined to finding error. But that does not mean the Court must strive to read the reasons in such a way as to avoid the conclusion of error. For example, it is not for the Court to fill gaps in reasons by speculating about what further unarticulated considerations, if any, lie behind what the decision-maker said. The Court’s duty is to read the reasons fairly and as a whole, making due allowance (where relevant) for the fact that the authors are not lawyers accustomed to writing in a legal manner.

Procedural fairness and financial incentives

17. The Majority’s reasons were written as a response to the presiding member’s reasons. On the issue at hand, relevantly, the presiding member said this:

[111]   … To the extent that it has been suggested, albeit not as part of a particular of any complaint against her, that the Practitioner has in some way financially benefitted from directly dispensing medication to her patients, the evidence does not establish that any such prescribing has been unlawful or intended to have, or have had, any actual or likely financial benefits for the Practitioner, or any inappropriate financial benefits for her patients.

…

[169]   The Commission further submitted that the Practitioner directly purchasing products from the supplier (spending almost over $25,000 per month) and directly dispensing the product to patients (even if it was at cost price) significantly impacted her clinical objectivity with respect to Somatotropin and her consideration of it on a case by case basis. Given that there is no issue that the Practitioner made no money out of those transactions, I am unable to accept that, although ill advised, the Practitioner’s could reasonably have impacted upon her clinical objectivity.

18. At [255] the presiding member summarised his key findings in a list of 12 points, which included the following:

(ix)   the claim that there was anything sinister associated with the Practitioner’s prescribing or direct dispensing of off-label medication has not been established to my comfortable satisfaction, either with respect to the practice itself or any asserted financial implications of it. The Commission has not in my view proved that the Practitioner attempted to “veil” any inappropriate conduct with respect to prescribing or dispensing off-label medication;

…

(xi)   the evidence does not in my view establish that, whatever the shortcomings in her prescribing and management of off label medications, the Practitioner’s objectivity or judgement was compromised by financial or any other considerations; …

19. In response, the Majority’s reasons included the following:

Financial incentives

[313]   In relation to paragraph 65, 111 and 169, the practitioner was spending around $25,000 per month on somatropin (see paragraph 176) and it is plausible that this expensive level of ongoing inventory may have impacted her objectivity as it would have generated considerable pressure on the practitioner to maintain the turnover of her stock of somatropin.

[314]   Prescribing and dispensing a restricted substance at cost would be a substantial financial incentive for many patients to consult with the practitioner, thereby raising the number of patients attending her consultations. This view is contrary to the view expressed by his Honour at paragraph 169. There were no receipts issued by the practitioner in evidence and we had to rely on oral evidence from the practitioner in regard to the costs of consultations and prescriptions issued by her.

20. The Majority responded at [355] to the presiding member’s summary of findings at [255], saying:

(ix)   “Sinister” or “veil” were terms that were not included in the particulars and hence not relevant to these proceedings;

…

(xi)   Disagreed. The practitioner paid for and stored some $25,000 of Somatropin per month which she dispensed directly to patients. Paying for and storing such a valuable inventory would have been reason to prescribe and create turnover of this inventory thereby influencing her objectivity in prescribing; …

21. The nature of the concern expressed by the Majority at [313] is somewhat difficult to understand. As the presiding member alluded to, by the end of the hearing below it did not seem to be disputed that the appellant was dispensing the HGH at cost price, although that had not been the Commission’s understanding at the commencement of the case. The Majority seemed to imply that there was some pressure on the appellant to dispose of a large stockpile, perhaps because it had a limited shelf life, or because it needed to be purchased by her in some large amount. But no such evidence was identified. And it was not how the Commission put its case. The Majority’s view, as espoused in [313], that it was “plausible that this expensive level of ongoing inventory may have impacted her objectivity” was speculative. This speculation was never put to the appellant and was translated by the Majority into a positive conclusion (“thereby influencing her objectivity”) in [355(xi)].

22. In its closing written submissions the Commission had noted that the appellant spent around $29,000 per month purchasing HGH (it seems that the Tribunal’s references to $25,000 were mistaken). It said it could be inferred that for her “to have spent that much per month, she saw benefit in this aspect to her practice”; this “would have affected her objectivity and judgment when determining whether it was clinically appropriate for her patient”; and that the appellant gained increased patronage from direct dispensing.

23. The appellant’s complaint is that the Majority denied her procedural fairness in finding that her objectivity was compromised as a result of financial pressure to turn over her stock of HGH when that was not part of any particularised complaint and had not been put to her. Senior counsel appearing for the appellant, Ms Mathur SC, acknowledged that the issue had been the subject of closing submissions in those terms before the Tribunal by both sides, and no objection on procedural fairness grounds had been made to the issue having then been raised. However, she effectively conceded this was an error on the part of the appellant’s legal team and the point should have been taken. As explained by Adamson JA below (at [161]), an unfortunate feature of this matter was that oral closing submissions occurred about a year after the evidence had been completed, with written submissions being supplied shortly before that final hearing. Ms Mathur argued that any lack of fairness was not cured by the chance to make submissions below, because the appellant herself should have been given the chance to deal with it in evidence. Any error in this respect by the appellant’s legal team in submissions below should not be held against the appellant. Senior counsel appearing for the Commission in this Court, Ms Heger SC, fairly accepted as much.

24. The starting point of the procedural fairness analysis must be the Amended Complaint which was before the Tribunal. Complaint One of the document relevantly alleged that the appellant was guilty of unsatisfactory professional conduct including because she “prescribed and inappropriately dispensed” HGH to Patients A-J on dates and in quantities particularised. Complaint Two related to inadequate record keeping. Complaint Three alleged that the conduct of the appellant taken as a whole constituted professional misconduct.

25. In Complaint One, for each of patients A-I further particulars were then provided of when the appellant “inappropriately prescribed” identified drugs, and it was alleged for each that she “failed to appropriately manage the prescribing of the drugs”, where they were prescribed off-label. These particulars said nothing further as to how or why she had “inappropriately dispensed” the drugs. A fair reading of the relevant portions of the Amended Complaint in context is that the dispensing of HGH was inappropriate for the same reasons as its prescription was. For Patient J, similar allegations were made, along with an additional allegation with respect to prescription of other drugs.

26. Ms Heger accepted that “there’s nothing in this document that expressly says she had a financial incentive and that compromised her objectivity”. Thus the allegation was not made in the place where it should have been.

27. The appellant filed a “Reply” to the Amended Complaint dated 19 September 2022 which addressed criticism of her directly dispensing HGH. Her reasons included that direct dispensing “is convenient for patients and it protects their privacy as well”. Naturally enough, given that the issue had not been raised, the appellant did not address any issue of claimed financial incentive or suggested lack of objectivity.

28. The appellant’s solicitor requested further particulars of the Amended Complaint in a letter sent on 12 September 2022. The Commission indicated in its response on 21 September 2022 (provided after the Reply had been filed) that a particular had been added “regarding the dispensing of Somatropin directly to the patients”, which had occurred after an earlier hearing before the presiding member. The letter included a table responding to specific questions asked by the appellant’s solicitor. The table had three columns, without headings. The first column of the table listed the questions; the second column appeared to provide the answer to the questions; the third column appeared to indicate what evidence, standards or the like were relied upon in support of the allegation at issue.

29. In response to the relevant query, being “what is meant by inappropriate dispensing”, the Commission said the following in the second column:

Dispensing the said medication privately and directly to patients, particularly in circumstances where it was prescribed for ‘off-label’ purposes without a clinical, scientific or medical basis.

30. This answer to the question did not suggest that the appellant had some financial or stockpile-related incentive relating to dispensing HGH which may have compromised her objectivity. Given that the Commission had not identified this issue either in its Amended Complaint or in its answer to a specific question seeking particulars, the appellant could reasonably have concluded that no such issue was being raised. Thus the presiding member made the point that the suggestion the appellant had in some way financially benefitted was “not … part of a particular of any complaint against her” (at [111]).

31. The Commission in this Court did not rely upon its actual answer to the direct question asked of it in the request for particulars. Rather, it said that the allegation was identified by way of the evidence and materials referred to in the third column of the table, as follows:

Dr Kertesz’s first report (tab 40), pages 33 and 34 considered with his answers in his supplementary report at page 19 and 20.

Professor Carter’s report (tab 47), page 7.

See also tab 73, 75 to 77: Professional Standards and Guidelines; tabs 80 to 89: prescribing and drug information

32. The Commission did not seek to rely in this Court on the professional standards and guidelines identified. Nor were we taken to the first report of Dr Kertesz in this regard. In Dr Kertesz’s supplementary report he relevantly said this:

Dr Della Bruna stepped outside standard prescribing by prescribing off label, she dispensed the Somatropin to patients in lieu of referring for Pharmacy prescribing, and she did so outside the safety guidelines in her purchasing, storing, selling, prescribing, dispensing, and delivering Somatropin to her patients. She made note of the prescribing of the medication and then made notes in dispensing records with respect to the Somatropin in which she was dealing. The only reference in the patients notes as to the potential or possible side effects or unwarranted effects to her dispensing of the Somatropin was a reference in most cases to “pros and cons discussed”.

Her behaviour in this manner of prescribing dispensing and the attraction of a fee for the medication delivered to the patient brings her conduct to be below the standard expected of a practitioner of equal training and experience. Her behaviour was significantly below that standard.

33. The Commission sought to emphasise the words “the attraction of a fee for the medication delivered to the patient”. Yet the obvious meaning of what Dr Kertesz was referring to was that the appellant would profit by receipt of the fee for the act of providing the HGH. That was a natural assumption for him to make when preparing his reports. In fact it was wrong; the appellant was dispensing the drug at cost price. Senior counsel for the Commission submitted that there were a “number of different ways you might read this”, and it “could” be understood to mean that the appellant “has a consultation, it’s prescribed and given to the patient in the context of that consultation, so we say that language is broad enough to encompass the consultation fee itself”. We regard that reading as contrary to the ordinary connotation of the words used, understood in context.

34. The other material the Commission had identified was at p 7 of Professor Carter’s report, where this was said (emphasis added):

It is apparent from the clinical notes provided to me that Dr Della Bruna was not prescribing Somatropin for [growth hormone] deficiency. The actual reasons given varied from improvement in cognition, well-being, memory, concentration, sleep patterns, energy, wound healing & pain relief. Somatropin has not been proven (in double blind, placebo controlled trials) to be of benefit in any of these situations. Aside from possible financial considerations, it is difficult to understand why Dr Della Bruna apparently personally dispensed Somatropin rather than arranged for dispensation from a Pharmacy.

35. The words “aside from possible financial considerations” were struck out of the report by the presiding member at a preliminary hearing on 18 October 2022 as being “gratuitous”, which can be understood in context as also meaning speculative. Senior counsel for the Commission noted that those words had not been struck out at the time its response was sent (on 21 September 2022) and described those redacted words in this Court as “a suggestion, and I accept a fairly vague one, that she might have had some financial motivation for prescribing these drugs”. The words were, indeed, vague at best.

36. The Court was also taken to some cross-examination of the appellant by counsel then appearing for the Commission. The relevance of cross-examination to the current dispute is open to argument. Although the questions were not objected to, the nature of the case to be met should have been articulated prior to the appellant giving evidence. In any event, we do not consider the cross-examination advances the Commission’s argument. It was put to her that being able to obtain the HGH at cost price would have been an attraction to patients. But it was not suggested to her, let alone squarely, that she had a financial incentive to prescribe the drugs, that she had some need to run down a stockpile of drugs, or that either of those imperatives had compromised her objectivity in deciding what to prescribe.

37. It is notable that the culmination of the cross-examination on this topic constituted suggesting to the appellant that her explanations for direct dispensing (most notably being patient embarrassment) was not true, and rather that “the reason that you sought to directly dispense somatropin was to reduce the risk of oversight or investigation about it”. It is telling that senior counsel now appearing for the Commission said of this denouement, “[t]o that extent clearly her explanation for the direct dispensing is being put in issue” (emphasis added). And the extent her explanation was there being put in issue does not encompass financial or stockpile related incentives.

38. The Commission then sought to make something of the fact that the General Member asked some questions of the appellant, in the course of which the member referred to p 20 of Dr Kertesz’s supplementary report. The member’s questions about that page dealt with the distinct issue of safety guidelines. Any suggestion that procedural fairness was provided by some questioning by a member about a different topic, which questioning happened to touch on a page of evidence that the Commission now relies on, where the questions did not address the topic at hand, is as surprising as it is devoid of merit.

39. Drawing these matters together, part of the Majority’s reasoning was that the appellant had some financial or stockpile-related incentive to maintain turnover of her stock of HGH, which incentive may have impacted or did impact her objectivity in deciding to prescribe and dispense that drug. This was not alleged as part of the Commission’s case where it should have been, being the Amended Complaint. It was not stated in terms in the letter providing further particulars. The best that the Commission could point to was parts of two reports which were referred to in that letter. The natural reading of part of one sentence that the Commission relied upon in the first report (the supplementary report of Dr Kertesz) was not to the point. As for the report of Professor Carter, the relevant five words relied on were in fact struck out of the report prior to the final hearing as being gratuitous and speculative, and those words in any case did not actually articulate the allegation at issue. At best those words made some vague and speculative wave towards there being some financial motivation of an unstated kind.

35. It has been suggested that the fact that the appellant’s patients had a financial motive to consult her to obtain HGH at cost price necessarily meant the appellant had a financial benefit by way of having a competitive advantage as a doctor. Even if that implied step is accepted, a further significant step is then required to reach the serious finding made by the Majority that the appellant’s objectivity as a doctor in prescribing HGH was compromised by her own financial self-interest. Neither of these two steps was articulated by the Commission.

36. It has also been suggested that it was open to the Tribunal to consider that the practitioner’s business model took account of the holding costs of $29,000 worth of Somatropin per month. The Majority’s reasons do not suggest that it reached any such conclusion. Its reference at [355(xi)] to “[p]aying for and storing such a valuable inventory” as a reason for creating turnover does not expressly refer to the costs of storage; the appellant was not asked in cross-examination about the costs of storage; and this was not mentioned as part of the Commission’s case in its closing submissions to the Tribunal. Consistently with what is said above at [12]-[16] about reading the decision-maker’s reasons fairly and as a whole, it is not for the Court to speculate about what further unarticulated reasons, if any, lie behind what the Majority said.

37. A foundational requirement of procedural fairness is that a person liable to be adversely affected by a decision be fairly apprised of the case against them and given a reasonable opportunity to meet it: see eg Johnson v Miller (1937) 59 CLR 467 at 489; [1937] HCA 77; Kanda v Government of Malaya [1962] AC 322 at 337; Commissioner for ACT Revenue v Alphaone (1994) 49 FCR 576 at 591. The person should not be left to guess, nor required to box at vague shadows. It would not have been difficult for the Commission to articulate the point. If it intended to rely on the type of serious finding made by the Majority then it could and should have been articulated in clear terms in the Amended Complaint or, failing that, at least in its answer to the relevant question in the request for further particulars. Neither was done. The Commission’s strained reading of two part-sentences in two expert reports does not meet the required standard.

38. The Court may readily infer that the appellant may have been able to give evidence in response, such that the failure to comply was a material error: note LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at [15]. The Commission argued that the finding in question was “peripheral to the majority’s ultimate conclusion”, occupying only a paragraph of reasoning. Yet the impugned part of the decision appeared to have constituted one significant step in the Majority’s reasoning process, presaged by its own heading. So much is confirmed by the fact that the Majority returned to the topic in their summary paragraph at [355], responding point by point to the presiding member’s summary of findings. The finding made by the Majority at [313] of its reasons breached the requirements of procedural fairness in a material manner.

The rejection of the appellant’s evidence

44. As noted, the Commission’s second complaint in the proceedings below was that the appellant was guilty of unsatisfactory professional conduct by failing to make and keep adequate records in relation to Patients A to J. The appellant admitted the allegation, without necessarily admitting all of the particulars. No issue arises about that complaint on this appeal. What does arise is an issue about the view the Majority took of the appellant’s oral evidence with respect to her treatment of the patients, in light of the admitted inadequacy of her records.

45. The Majority said as follows:

Patient records

[342]   In relation to paragraph 116, his Honour stated that the practitioner: “was able to explain why she had prescribed particular medications, and the dosages which she had prescribed.” However, the patient records did not contain any of the information that the practitioner provided in oral evidence during the hearing.

[343]   The Medical Board Good medical practice: a code of conduct for doctors in Australia at section 10.5 states that it is essential for the continuing good care of patients to keep accurate up-to-date and legible records that report relevant details of clinical history, clinical findings, investigations, diagnosis, information given to patients, medications, referral and another management of the patient in the form that can be understood by other health practitioners. This is consistent with the opinion of Dr Kertesz.

[344]   The evidence of what occurred or what was undertaken at the time of the consultation is contained in the patient record. Oral evidence pertaining to specific consultations, some three or four years later, cannot replace a patient record which has been contemporaneously recorded and accordingly we reject the practitioner’s oral evidence on these points. If it is not in the patient record then the actions, justifications and monitoring did not occur despite the practitioner’s ex post facto assertions. This view is not limited to the paragraphs listed here but applies to his Honour’s decision as a whole. (e.g. paragraph 209, 235, 240)

46. In its response at [355] to the presiding member’s summary of findings, the Majority relevantly said:

(iv)   The Tribunal accepts the Medical Board Code of Conduct and specifically paragraph 10.5 of that document which requires that contemporaneous complete and accurate medical or patient records be maintained. Oral evidence, some four years after a consultation with a patient, from the practitioner pertaining to specific consultations in lieu of entries in the patient record are rejected by the Tribunal;

…

(vi)   The Tribunal rejects the practitioner’s oral evidence in relation to her prescribing and management of the ten patients who were the subject of the complaint. Patient records are required to be made contemporaneously and in accordance with 10.5 of the Code of Conduct. Ex post facto assertions in respect of patient consultations that occurred some four years prior are inherently unreliable.

47. The point that the presiding member had made at [255(vi)], to which the latter sub-paragraph in the Majority’s reasons responded, is worth noting:

the Practitioner gave detailed evidence in cross-examination by Counsel for the Commission and, significantly, in response to probing questions by the Tribunal, particularly by the two Medical Members of the Tribunal. Although in cross-examination Counsel for the Commission disputed that the Practitioner had done certain of the things which she claimed she had, there is in my view no reason to reject the Practitioner’s claims with respect to what she did in the course of prescribing or managing off-label medications for the ten patients the subject of these proceedings …

48. The presiding member was correct to indicate that the appellant gave detailed oral evidence with respect to what she did in the course of prescribing and managing off-label medications for the ten patients. In so doing it is apparent that she was referring to her records then seeking to add further information from her memory.

49. The appellant made this submission:

The Majority does not articulate any basis to reject or doubt the practitioner’s evidence other than a global assertion (at [355](vi)) that the passage of time makes her ‘assertions … inherently unreliable’. It is the experience of Tribunals and Courts at every jurisdictional level that witnesses are asked to (do, and can) recall matters which took place years, sometimes decades, prior to their occurrence, in the absence of contemporaneous documentation. The suggestion that something ‘did not occur’ merely because it was not written down in a contemporaneous record is both irrational and unreasonable.

50. We agree.

51. Senior counsel for the Commission sought to defend the reasoning at [344] in these terms:

So the reasoning here is not simply, “If it’s not in the records, we reject it.” It’s that she is purporting to give oral evidence some four years after the relevant consultation about discussions she had with patients and the majority is saying, “It’s an ex post facto assertion given four years after the event. We find it to be an unreliable account.”

52. This attempted explanation prompts the obvious question: why did the Majority find it to be an unreliable account? It was of course open to the Majority to reject the extensive evidence of the appellant, in whole or in part, as being unreliable or not credible. But to do so requires reasons. Giving such reasons is not mere verbiage; it is a critical step in explaining a conclusion.

53. For example, the Majority might have referred to any inconsistencies or contradictions in her evidence; identified some examples of what she said that was unreliable; given instances where her claimed memory was shown to be contrary to something in a record; or expressed the view that the appellant’s demeanour whilst giving evidence cast doubt over what she said. It is conceivable that the Majority considered that her evidence was so replete with guesses and admissions as to lack of recollection as to be completely unreliable. Yet the Majority made no such suggestion. To infer that any one of these possible explanations was the Majority’s real reason, beyond the reasoning they actually expressed, is speculative.

54. Consistently with what has been explained above at [12]-[16], it is not the role of a Court on appeal or judicial review to assume that there must have been some good reason for any conclusion reached and, on that assumption, then to conclude that the failure to give a rational reason manifests no error. Doing so is circular. Where a judge is “bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result”: Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 at [130] (Hayne J). This principle has been applied to administrative decision-makers who are obliged to give reasons: D’Amore v Independent Commission Against Corruption [2013] NSWCA 187; (2013) 303 ALR 242 at [101]-[105] per Beazley P, Bathurst CJ agreeing at [1]. It applies here.

55. Having noted at [342] that the appellant’s oral evidence went beyond what was contained in the patient records, the only reasons the Majority gave for its wholesale rejection of the appellant’s evidence on point were as follows:

1. Section 10.5 of the Medical Board’s Code of Conduct states that it is essential for the continuing good care of patients to keep accurate up-to-date and legible records (see [343] and [355(vi)]).

2. Oral evidence “pertaining to specific consultations, some three or four years later, cannot replace a patient record which has been contemporaneously recorded and accordingly we reject the practitioner’s oral evidence on these points” (at [344]).

3. “Ex post facto assertions in respect of patient consultations that occurred some four years prior are inherently unreliable” (at [355(vi)]).

56. At [355(iv)] the Majority also said that “[o]ral evidence, some four years after a consultation with a patient, from the practitioner pertaining to specific consultations in lieu of entries in the patient record are rejected by the Tribunal”. That statement is a conclusion, not a reason.

57. As to the first and second reasons as just identified, it is clear that the appellant was required to keep good records, and she conceded she did not do so as well as she should have done by admitting to Complaint Two. But the normative requirement that she keep good records does nothing to establish that her memory is unreliable. It is irrational and unreasonable to suggest otherwise. Usually contemporaneous records will be the most reliable source of evidence. That being said records can be erroneous, in which case the better evidence may indeed be a subsequent explanation. Even leaving such cases aside, the fact that records are generally better evidence does not establish that subsequent explanations are or no value. That is especially true insofar as the subsequent evidence expands upon what is contained in the record. It is a non sequitur to suggest otherwise.

58. As to the third reason, the limits of human memory are well known and much discussed: see, eg, Watson v Foxman (1995) 49 NSWLR 315 at 318-19; Willmot v Queensland [2024] HCA 42; (2024) 98 ALJR 1407 at [30]. In some cases that leads courts or tribunals to reject the testimony of witnesses. Yet judges, juries and tribunals accept oral evidence as to past events – potentially occurring decades ago – every day of the week. Moreover, memories refreshed from contemporaneous notes are liable to be more accurate than those unsupported by such material.

59. As the Commission itself submitted, “her admission of inadequate record-keeping … made it all but certain that her oral recollections would come under close scrutiny”. In that context, if her evidence was to be rejected it was critical to explain why that was done, in rational terms. This the Majority failed to do.

60. The reasoning at [342]-[344] and [355(vi)] must be accepted as the basis for the Majority’s rejection of the oral evidence of the appellant. There is no other reasoning. The reasoning in those paragraphs is not only entirely generic, it is irrational. Accepting that reasons expressed in uncomplicated language mean what they say, read fairly in context, cannot be dismissed as pedantry. Indeed, a contextual reading reinforces that the Majority meant what they said. At [300] the Majority quoted some evidence of Professor Carter which criticised the appellant both with respect to her record-taking and treatment. The Majority then said:

[301]   As this information was largely missing from the patient records, it can be said that the practitioner did not undertake initial or subsequent assessment relevant to the side effects listed by Professor Carter with respect to the ten patients in this case.

61. This statement illustrates much the same reasoning process: if something was not recorded in the notes, it did not occur. A similar point seems to have been made at the end of [331].

62. The Commission argued that the Majority’s reasoning at [344] and [355(vi)] was not directed to the appellant’s evidence as a whole but rather to her evidence about particular consultations. It can be accepted that the Majority was dismissing the relevance of all of the appellant’s extensive oral evidence about all of her numerous consultations with all of her ten patients over a period exceeding two years. That was no minor step. The Commission’s point does nothing to answer the criticisms made of the reasoning.

63. The Majority’s approach involved error that can be expressed in various ways. Reversal of onus of proof (ground 2) might be a way in which the error could be expressed. Regardless, it was certainly a legal error by failure to give adequate, intelligible or logical reasons (raised by ground 6). It was also a constructive failure to exercise jurisdiction insofar as it involved a failure to grapple with a substantial and clearly articulated aspect of the appellant’s case (raised by ground 4). That type of error can also be expressed in terms of procedural fairness (as raised by ground 5(b)): Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24].

The claimed error of fact relating to testing

64. Ground 7 of the amended notice of appeal complained that the majority erred in fact in finding that:

(a)   The [appellant] did not seek blood tests to measure the IGF-1 levels in any patients to whom she prescribed human growth hormones.

(b)   Evidence of ‘ongoing monitoring’ was ‘missing’ from the [appellant’s] patient records.

The appellant accepted that it required leave to appeal from these findings of fact.

65. She contended that the purported factual errors were expressed in the following passages of the Majority’s reasons:

[297]   We note that the practitioner has not undertaken IGF1 blood tests to determine if any of the ten patients had an excessive of growth hormone, which would be germane to the protection of the health and safety of these patients.

…

[328]   … We note that in the ten patient records produced in relation to this matter, the practitioner has not sought blood tests to measure the IGF1 for any of the patients. In these circumstances, continuing to prescribe HGHs to these patients, without the appropriate serological monitoring amounts to serious negligence.

…

[331]   … During oral evidence, Professor Holmes-Walker stated that in the past she had prescribed “off label” HGH for patients with serologically identified partial human growth deficiencies. However, unlike the practitioner, Professor Holmes-Walker prescribed an individualised starting dose based on the patient’s weight, titration of growth hormone over several weeks based on safety, efficacy and tolerability. In addition, Professor Holmes-Walker conducted ongoing monitoring at least six months with IGF-1, lipids, glucose, blood pressure, weight and body mass index. All of these considerations are missing from the practitioner’s patient records.

…

[355]   In relation to paragraph 255 and his Honour’s findings, the following responds to his Honour’s subparagraphs as follows:

(i)   while there were no patient complaints there was a mandatory notification from the PRU to the Medical Council which resulted in conditions on the practitioner’s registration prohibiting the prescribing of HGHs;

(ii) and (iii)   Professor Carter identified side effects in patients B and C that he attributed to excess growth hormone. Professor Carter’s evidence was that there was potential for significant side effects in the prescribing of HGHs. Considering the prolonged treatment periods that averaged over 17 months for the ten patients, any potential side effects would have gone unmonitored because of the absence of IGF1 serological analysis… (emphasis added)

66. The appellant argued that the Majority erred in fact at [297], [328], [331] and [355] because the evidence before the Tribunal highlighted that the appellant did conduct IGF-1 tests for patients who were prescribed HGH and that “ongoing monitoring at least six months with IGF-1, lipids, glucose, blood pressure, weight and body mass index” were not considerations wholly missing (“all are missing from the practitioner’s patient records”) as asserted at [331].

67. Senior counsel for the Commission, although opposing the grant of leave, accepted that if the Court acceded to the appellant’s complaint that, on their fair and proper reading, these paragraphs disclosed that the Majority proceeded on an incorrect factual basis and these factual errors were material, there was nothing that she could say against leave to appeal being granted. So much was consistent with what Griffiths AJA recently observed in Kavieris v Health Care Complaints Commission [2025] NSWSC 20 at [116]:

While a misunderstanding or mistake as to evidence does not generally constitute an error of law…, it may appropriately be described as an error in fact finding. In a jurisdiction such as that under cl 29(4)(b) of Sch 5 of the CAT Act where the error in fact finding is sufficiently serious and causes a substantial injustice, leave to appeal may be granted and the error identified.

68. For the reasons that follow, we are comfortably satisfied that the Majority proceeded on a seriously incorrect factual basis as to the testing and monitoring that was undertaken by the appellant of Patients A-J, that this error was material, that leave to appeal should be granted and that ground 7 of the appeal should be upheld.

69. The natural reading of the four paragraphs set out at [65] above support the appellant’s contention. Senior counsel for the Commission conceded that the language employed by the Majority was “imperfect”, argued that it amounted to the Majority simply saying, not that IGF-1 tests had not been undertaken, but that the appellant had not evaluated blood tests that had been undertaken. She continued:

HEGER: … We say all the majority is saying in 297, and it is imperfect, but all they’re saying is not that she never once did in IGF test, but that once somatotropin had been prescribed you don’t see IGF tests on a regular basis for this purpose of assessing whether any of the patients had excessive growth hormone.

BELL CJ: Why would you order the tests unless you were going to assess them?

HEGER: That’s a legitimate question to be asking. The point is that there was no evidence of her then subsequently conducting that assessment in the clinical records.

70. The Commission’s submission and the interpretation sought to be placed on the Majority’s language in [297] simply cannot be reconciled with what appears shortly after in the Majority’s reasons at [328], namely that “the practitioner has not sought blood tests to measure the IGF1 for any of the patients”. Moreover, the Majority in [328] implicitly equated the ordering of blood tests as at least part of what was “appropriate serological monitoring”. Further, as shall be shown, there was evidence of subsequent assessment of various tests that had been ordered.

71. Ms Heger was constrained to make the submission she did because the contemporaneous clinical records made by the appellant and which were before the Tribunal highlighted that the appellant had in fact conducted IGF-1 testing for patients A-J. Specifically, the contemporaneous clinical records showed that the appellant conducted IGF-1 testing, and recorded the test results, including for:

1. Patient A on 18 March 2019;

2. Patient B on 5 February 2019;

3. Patient C on 11 February 2019, recording the results of a pathology report dated 22 January 2019;

4. Patient D on 26 July 2019, recording the results of a pathology report dated in the same month, and a further IGF-1 result entered in the clinical records on 16 October 2019;

5. Patient E on 9 October 2016, 17 January 2018 and 16 October 2019;

6. Patient F on 17 October 2017, 24 October 2018 and 19 October 2019;

7. Patient G on 12 April 2016, recording the results of a pathology report dated 23 February 2016 and 1 July 2019;

8. Patient H on 18 July 2017;

9. Patient I on 27 June 2018; and

10. Patient J, a pathology report dated 17 April 2018 highlighted that the patient’s IGF-1 levels had been tested.

72. The appellant noted that Dr Kertesz’s first report expressly acknowledged that the appellant conducted IGF-1 tests in relation to patients A, B, C, D, E, G and I. As noted above, IGF-1 tests were also recorded by the appellant for Patient F, and conducted for Patient J. The appellant explained in cross-examination that she conducted IGF-1 tests:

Q.   In your answer you said blood tests would show their IGF-1s went up?

A.   Yes.

Q.   Are you suggesting that there was ongoing monitoring of hormone assessments?

A.   Yes.

Q.   In relation to each of those patients?

A.    I believe so.

73. During cross-examination, the appellant noted specific IGF-1 scores for her patients, such as for Patient E:

Q.   On 17 January 2018, sorry did you do a blood test?

A.   Yep. Half way down. Has had bloods done at local GP. Of note DHEA 1. Ferritin 40. IGF-I 17. Otherwise NAD. (emphasis added)

74. The appellant’s evidence was corroborated by her clinical records, as noted above. The Court was asked to infer that NAD was shorthand for “no adverse developments”, and this was not contested by the Commission. Implicit in the expression was the monitoring by the appellant of her patients. References to “NAD” were made throughout the appellant’s clinical records for patients A-J:

• Patient A on 12 October 2017 in relation to “CNP” and 26 October 2017 in relation to “bloods”;

• Patient B on 9 January 2018 in relation to “CNI;

• Patient C on 21 January 2019 in relation to “TML;

• Patient D on 9 March 2017 in relation to “ENT”;

• Patient E on 14 September 2016 in relation to “CNI” and “ANI” and on 17 January 2018 in relation to blood results;

• Patient F on 3 October 2017 and 24 October 2018 in relation to a panendoscopy;

• Patient G on 16 March 2016 in relation to “CNI/DNI”;

• Patient H on 23 June 2016;

• Patient I on 18 December 2017 in relation to “ANI” and “CNI”, 15 August 2018 in relation to “ENT” and an endoscopy; and

• Patient J on 18 June 2018 in relation to an “ECG”.

75. The Majority’s erroneous finding that no IGF-1 testing was sought or occurred was material to its reasoning process. Thus, at [328], immediately following its erroneous statement that “in the ten patient records produced in relation to this matter, the practitioner has not sought blood tests to measure the IGF1 for any of the patients”, the continued prescription of growth hormones without monitoring for IGF-1 was described as “serious negligence”.

76. The materiality of the factual errors in the Majority’s reasoning may also be seen in its emphatic statement at [331] with regard to monitoring of IGF-1, lipids, glucose, blood pressure, weight and body mass index. The Majority said emphatically and unambiguously that “[a]ll of these considerations are missing from the practitioner’s patient records”. This sweeping and damning statement was fundamentally erroneous. We have already noted the often multiple references to IGF-1 tests in the patient records. But there are even more and regular entries for the measurement of blood pressure (BP), height and weight, for example. Patient A’s records, for example, record separate blood test results on three occasions, blood pressure results on six occasions as well as weight being regularly tested. Such measurements occurred even more often for many of the other sample patients, on regular occasions. There are also entries in these notes for testing of lipids and glucose (see patients B, C, D, E).

77. The appellant’s clinical notes routinely preface the recording of blood pressure, pulse rates and weight with the letters “O/E”, shorthand for Observation/Examination. Some of these entries contain added commentary such as “recent bloods” (patient A), “due blood test” (patient B), “sent for blood tests” (patient C), “looks well” (patient D), “review past bloods”, “looks the same” and “Await blood results” (patient E), and “request bloods” (patient F).

78. By way of example, in relation to Patient A, the appellant made the following observations in her clinical records:

• On 12 October 2017, the appellant noted Patient A’s O/E blood pressure score, and that the patient presented “NAD”;

• On 26 October 2017, the appellant noted that Patient A’s blood results indicated NAD, and recorded O/E blood pressure and weight. On the same day, Patient A signed the consent for growth hormone form;

• On 12 December 2017, the appellant noted Patient A’s blood pressure, weight and height;

• On 20 February 2018, the appellant noted Patient A’s O/E blood pressure and weight;

• On 9 April 2018, the appellant noted Patient A’s O/E blood pressure presented “nil issues”;

• On 26 June 2018, the appellant noted that Patient A’s cognition was improving, and recorded weight and blood pressure;

• On 20 August 2018, the appellant noted that Patient A was experiencing “no issues”, and recorded weight and height;

• On 22 October 2018, the appellant noted that Patient A was experiencing “no side effects”, and recorded blood pressure;

• On 15 January 2019, the appellant noted Patient A’s weight;

• On 18 March 2019, the appellant noted Patient A’s recent blood results, and recorded, inter alia, the patient’s IGF levels; and

• On 13 May 2019, the appellant noted that Patient A was “feeling great” and recorded the patient’s weight.

79. By way of further example, in relation to Patient B, the appellant made the following observations in her clinical records:

• On 9 January 2018, the appellant noted Patient B’s blood pressure and blood test results including IGF-1 levels. The appellant noted that she discussed with the patient the pros and cons of Somatropin;

• On 16 January 2018, Patient B signed the consent for growth hormone form;

• On 22 March 2018, the appellant noted Patient B’s blood pressure and weight;

• On 20 June 2018, the appellant noted that Patient B reported improved cognition;

• On 1 August 2018, the appellant noted that Patient B’s symptoms were stable and recorded blood pressure, weight and height;

• On 23 October 2018, the appellant noted that Patient B’s symptoms were stable and recorded blood pressure and weight;

• On 5 February 2019, the appellant noted Patient B’s blood pressure and blood test results, including IGF levels;

• On 16 April 2019, the appellant noted that Patient B reported “nil issues” and stable symptoms. She measured his blood pressure and weight;

• On 17 June 2019, the appellant noted that Patient B would have a break from Somatropin, and measured blood pressure and weight;

• On 7 October 2019, the appellant noted Patient B’s blood pressure and weight. The appellant recommenced prescribing Somatropin; and

• On 6 November 2019, the appellant noted Patient B’s blood pressure and weight. The appellant also ordered blood tests for Patient B, to be assessed on the “next visit”.

80. The appellant’s clinical records therefore contradict the Majority’s statement in [328] that IGF-1, blood pressure and weight were “missing from the practitioner’s records”. The appellant also requested pathology reports for Patient B, which recorded IGF-1, lipids, glucose and insulin levels, on 22 January 2019.

81. The materiality of the Majority’s conclusions with regard to the [mistaken] absence of monitoring may also be seen from [281] where it was said that the “paramount concern” was to protect the safety of the public from “the potential for harm from very serious side effects caused by the prescribing of growth hormones… without adequate serological monitoring for side effects”.

82. No convincing answer was given to what was conceded by the Commission to be the “legitimate question” asked by the Chief Justice as to “[w]hy would you order the tests unless you were going to assess them?”: see [69] above. The Commission’s position seemed to amount to the proposition that the ordering of pathology tests and the noting of particular results in a patient’s clinical notes was a wholly mechanical act amounting to a solemn farce. Why would tests be ordered in the first place? Why would the practitioner await the results of blood tests if she did not intend to monitor the patients? Why would the results be regularly recorded and some at least of the notes annotated with shorthand expressions such as NAD (“no adverse development”)? Why would weight and blood pressure measurements be routinely taken?

83. The Majority’s reasoning and conclusions with regard to an absence of monitoring by the appellant, and its significance for their ultimate conclusions, was vitiated by serious misconceptions as to what was done and recorded in the appellant’s clinical notes, examples of which have been referred to above. True it is that these records were not as full as they should have been, and the appellant conceded as much. They were sufficiently full, however, to negate the conclusions of the Majority that the IGF-1 tests had not even been sought and that all of the other ongoing monitoring that Associate Professor Holmes-Walker had indicated was missing from the patients’ records. The evidence was quite to the contrary. Although it is not necessary to speculate how such a fundamental error could have occurred, it may be attributable in part to the long delay between the hearing of the evidence and the final submissions and then to what may be inferred to be the long delay between that event and the formulation of the Majority’s reasons which responded to those of the presiding member.

84. We are mindful that Adamson JA has accepted the Commission’s submission that “such [IGF-1] tests as were done were not done for the purpose of determining whether any of the patients had an excess of growth hormone” (emphasis in original). Her Honour states at [296]:

The Tribunal was careful in its reasons to qualify its finding that the appellant failed to order tests by purpose (to determine whether there was growth hormone deficiency) and by time (before she prescribed any Somatropin). To read its reasons otherwise is to fail to give each word its meaning in the sentence and in context. The qualifying words as to purpose and time are there because they have work to do. The Tribunal can be taken to be aware that the appellant conducted IGF-1 tests from time to time on her patients: it did not find to the contrary. But what it did find is that those tests were not done for the required purpose. This finding, far from being erroneous, was entirely uncontroversial. The appellant admitted that she had not done any such tests for that purpose before she prescribed Somatropin and maintained that it was not necessary that they be done. The Tribunal was entitled to accept that admission. (emphasis in original.)

85. With respect to her Honour, we cannot agree. This is so for a number of reasons.

86. First, the statement – “[t]he Tribunal can be taken to be aware that the appellant conducted IGF-1 tests from time to time on her patients: it did not find to the contrary” – cannot be reconciled with the Majority’s unambiguous statement at [328] that “the practitioner has not sought blood tests to measure the IGF-1 for any of the patients” (our emphasis). The Majority’s factual error was confirmed by its subsequent statement at the conclusion of [331] about the considerations said “all” to be “missing from the practitioner’s patient records”.

87. Second, the Majority did not qualify its statement in [297] by reference to considerations of “time (before she prescribed any Somatropin)”, contrary to Adamson JA’s suggestion. Nothing in [297] supports her Honour’s statement that “[t]he Tribunal was careful in its reasons to qualify its finding that the appellant failed to order tests …. by time (before she prescribed any Somatropin)”. Indeed, the context is to the contrary: the Majority referred to Professor Carter’s concern to monitor for medical conditions “exacerbated by excess growth hormone such as somatropin”: [296]. The “identification of side effects” could only occur by testing after administration of the drug to particular patients. This was consistent with how the Commission puts its case on appeal. Thus Ms Heger submitted:

We say all the majority is saying in 297, and it is imperfect, but all they’re saying is not that she never once did in IGF test, but that once somatotropin had been prescribed you don’t see IGF tests on a regular basis for this purpose of assessing whether any of the patients had excessive growth hormone.” (emphasis added)

88. Third, her Honour says:

The appellant admitted that she had not done any such tests for that purpose before she prescribed Somatropin and maintained that it was not necessary that they be done. The Tribunal was entitled to accept that admission.

89. In response we would make three points. First, her Honour located the admission to which she referred as having been made by the appellant in her Reply to the Commission’s initial (unamended) Complaint, dealing with Patient A:

I DISPUTE THAT IT WAS NECESSARY TO ORDER GLUCOSE/INSULIN TESTING TO DETERIMINE GROWTH HORMONE DEFICIENCY PRIOR TO PRESCRIBING FOR THIS PATIENT[.] GROWTH HORMONE DEFICIENCY WAS NOT WHAT WAS BEING TREATED. THE HGH MEDICATIONS WERE BEING USED “OFF LABEL” AND THE PATIENT WAS FULLY INFORMED OF THIS, AND OF THE RISK AND POSSIBLE BENEFITS, AND WAS HAPPY TO HAVE THIS REGIME PRESCRIBED. TO SEND THIS PATIENT FOR SUCH INVESTIGATIVE TESTING WAS NOT INDICATED.

90. This passage in terms is directed to testing prior to prescription of Somatropin. It would only assume significance if that is what was being addressed in [297]. For the reasons given above, it was not.

91. Second, the Tribunal did not “accept” any such admission (even if it is correct to refer to it as an admission: cf Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 86; [1990] HCA 31). The Majority did not even refer to this aspect of the appellant’s Reply in its reasons nor was it relied upon in the Commission’s oral or written submissions below.

92. Third, what Adamson JA has referred to as the appellant’s admission contained in her Reply to the Commission’s Complaint was not referred to nor relied upon by the Commission in its submissions before this Court. The appellant was not given an opportunity to be heard in relation to the significance which it appears to assume in her Honour’s reasons.

93. Finally, we note that in relation to ground 7(b), her Honour appears implicitly to accept that the Majority’s erroneous statement that “All of these considerations are missing from the practitioner’s patient records” was not correct, and that “the appellant conducted some testing of her patients”: see [298] below. In rejecting this ground of appeal, however, Adamson JA referred to evidence of Associate Professor Holmes-Walker as to the frequency with which such tests should occur, suggesting that such testing as the appellant did undertake did not meet what was required. Thus, her Honour states that:

The appellant’s expert, Associate Professor Holmes-Walker said that monitoring of patients to whom HGH had been prescribed must be undertaken at intervals of no more than six months and must involve testing of the markers referred to by the Tribunal at [331].

94. Later her Honour referred to six months as the “stipulated” period. Yet the expert was not so prescriptive as to time. As Ms Heger acknowledged in the course of submissions:

Every six months, I think was her evidence, although [she] then accepted perhaps it could be done after a few months and then maybe after a year, but certainly there needs to be some sort of repeat regular monitoring and that there needs to be some evaluation of it.

95. Later in her submissions she was more precise:

Professor Holmes‑Walker had said there needs to be an initial assessment after a few months and then her gold standard was after six months, but she accepted maybe then a year after would also be acceptable. (emphasis added)

96. This was consistent with Associate Professor Holmes-Walker’s evidence in cross-examination:

Q.   By your answer, I take it that you have chosen to undertake some pathology and blood tests in order to conduct a proper surveillance of it.

A.   So, I think I indicated that certainly in older individuals - but certainly anyone on growth hormone I’m going to monitor their IGF1. I’m going to regularly monitor that and make sure that’s not progressively increasing and increasing and increasing.

Q.   Regularly monitor—

A.   IGF1.

Q.   But how often?

A.   I think - so, as I said, I would do it at three-month mark and then I would think at a minimum annually. My patients are coming six monthly and I tend to do their tests six monthly, but I think annually would also be sufficient. (emphasis added.)

97. In any event, while not all of the marker tests may have been undertaken at six monthly intervals, many were undertaken more regularly and certainly within 12 month periods.

98. The Majority proceeded, however, on the basis that there was no monitoring whatsoever: “all of these considerations are missing from the practitioner’s patient records”. This is the gravamen of the appellant’s complaint. There was no analysis by reference to the evidence as to the adequacy of the monitoring and testing that was in fact done. This would have had to have occurred in order for the Tribunal to form a view as to whether the practitioner’s conduct not only fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience but did so to a significant degree.

Conclusion and orders

99. The appeal must be upheld. The orders of the Tribunal which give effect to the Majority’s conclusion must be set aside. That will mean the Commission’s Amended Complaint remains undetermined.

100. The appellant sought that remittal be to a differently constituted Tribunal, save that it sought that the presiding member remain. Given that the Majority, at least on one view, has made credit and reliability findings in relation to the appellant, it is appropriate that the Tribunal be differently constituted on reconsideration. However, the appellant cannot pick and choose who will sit on that panel. There should be no exception for the presiding member.

263. The appellant’s denial that her patients had such an incentive was simply a matter for the Tribunal to weigh in the balance. The Tribunal was entitled not to accept her denial (which related in any event to what was in the minds of her patients), including because an admission would have been adverse to her interests in the proceedings. The inference that this price differential would provide a financial incentive for the appellant’s patients to go to her rather than to another medical practitioner who might not dispense Somatropin at cost was at the very least open, if not positively compelling.

264. The appellant also sought to challenge the final sentence of [314] where the Tribunal noted that as the appellant had not tendered any receipts, it had to rely on her oral evidence as to the cost of consultations, prescriptions and Somatropin. This challenge must fail. The Tribunal’s reasons made plain that it accepted the appellant’s evidence as to these matters, implicitly notwithstanding that she had not produced documentary evidence to corroborate it.

265. Sub-ground (6) of ground 2 has not been made out.

Alleged speculation and inversion of the onus of proof in the finding that ageing patients may have been attracted to anti-ageing medication despite its dubious efficacy: [336] (sub-ground (7) of ground 2)

268. The appellant submitted that in [336], the Tribunal engaged in speculation and reversed the onus of proof. She relied on the Principal Member’s reasons at [111]-[112] of his minority opinion, which referred to the absence of any complaint by the appellant’s patients and the circumstance that the appellant considered her patients to be well-informed about anti-ageing.

269. The observations I have made with respect to sub-grounds (5) and (6) of ground 2 also apply to this sub-ground. The Tribunal was entitled to inform itself as it saw fit, subject to the requirements of procedural fairness: s 38(2) of the NCAT Act. Accordingly, it was entitled to consider that at least some individuals who are getting old (with the concomitant reduction in virility, energy, muscle mass and so on) would prefer to halt, defer or reverse the effects of ageing and that this desire might be accompanied by a degree of wishful thinking in otherwise rational people. There was no suggestion that this was, if not a truism, something which could genuinely be disputed. In these circumstances, it is unsurprising that there is no evidence of any patient complaining. Well-informed people may still be credulous and wishful, particularly if they believe that they have access to an elixir of youth.

270. Further, the evidence of Associate Professor Holmes-Walker extracted above also provides a basis for the inference in the present case since her experience indicated that an individual would come to practitioners such as herself (endocrinologists) wanting HGHs for an “anti-ageing” purpose: in other words, to counteract the effects of age, which are, at least in a physical sense, regarded objectively and experienced subjectively as negative.

271. For these reasons, sub-ground (7) of ground 2 has not been made out.

Alleged error in finding that the evidence to support the efficacy of HGH was largely anecdotal and that such evidence might correspond with the placebo effect: [337] (sub-ground (8) of ground 2)

272. The word “anecdotal”, when read in context, was used by contrast with the undisputed fact that there had been no high-quality, double-blind placebo-controlled trials for HGH in a non-HGH deficient population. The expert evidence referred to above, including that of Professor Carter and Associate Professor Holmes-Walker, was to the effect that a patient’s self-assessment of the efficacy of HGH was unreliable (whether due to the placebo effect or otherwise). Thus, a medical practitioner was obliged, when assessing whether to prescribe Somatropin, to weigh up the uncertain benefit (apart from the placebo effect) of HGH against the potential for serious adverse side effects. For these reasons, sub-ground (8) of ground 2 has not been made out.

Alleged speculation on the characteristics of the appellant’s cohort of patients by inferring that they were “drug-seeking”: [350]-[353] (sub-ground (9) of ground 2)

273. The appellant submitted that there was no evidence that any of Patients A-J were drug-seeking or that their levels of drug use allowed the inference to be drawn that they were. On this basis, she submitted that there was no evidence to support the findings at [350]-[353].

274. This submission appears to be based on the misapprehension that the Tribunal made any finding about the characteristics of the appellant’s cohort of patients in terms of whether they were drug-seeking. When the Tribunal’s reasons are read carefully, fairly and as a whole, it is plain that the Tribunal was concerned that the appellant appeared to be oblivious to, or insufficiently cognisant of, the risk that persons who were drug-seeking would seek her out to obtain HGH for various reasons, including that:

1. she dispensed to patients directly (thereby avoiding the additional layer of scrutiny which a dispensing pharmacy would have provided);

2. she did not regard it as suspicious when patients saw her only for anti-ageing concerns and saw their regular or other general practitioner for other health issues;

3. she did not seek an explanation from patients who lived distant from Bondi Junction, from which she principally practised, and in some cases as far away as Queensland, as to why they had come to her;

4. her periodic monitoring of patients must have been affected by physical distance from her patients to some degree; and

5. she was prepared not only to sell Somatropin to her patients at cost price but she would also give discounts for bulk purchases by individual patients.

275. These matters were all germane to the Tribunal’s assessment of whether the conduct proved against the appellant fell significantly below the expected standard. For these reasons, sub-ground (9) of ground 2 has not been made out.

Ground 3: alleged error in not accepting Associate Professor Holmes-Walker’s assessment that the appellant’s conduct fell below, but not significantly below, the relevant standard: [335]

276. In substance, the appellant submitted that it was legally unreasonable for the Tribunal not to accept the assessment by Associate Professor Holmes-Walker that the appellant’s conduct fell below, but not significantly below, the relevant standard. In other words, the appellant submitted that the Tribunal was bound to accept her assessment and that any other assessment was legally unreasonable.

277. The appellant submitted that, if the Tribunal were to reject (or not accept) Associate Professor Holmes-Walker’s assessment on the basis that she was an endocrinologist, the Tribunal was also bound to reject Professor Carter’s opinions on the same basis. She further submitted that there was no reason to distinguish between the opinions of the two endocrinologists on the basis of their expertise, since each was well qualified and experienced.

278. These submissions misapprehend the task to be performed by the Tribunal. The evidence of the experts was, in the main, opinion evidence. Their opinions were largely accepted by the Tribunal, which took care to reconcile any material differences between them. However, the ultimate question – to what extent the appellant’s conduct, as proved, fell below the requisite standard – was, pre-eminently, one for the Tribunal itself, albeit one in respect of which the experts could give their own opinions, which were taken into account by the Tribunal. The Tribunal’s reasons adequately explain its preference for Dr Kertesz’s and Professor Carter’s assessment. The appellant has failed to establish legal unreasonableness.

Ground 4: alleged failure to consider and determine a substantial and clearly articulated argument: namely whether the prescribing and dispensing of certain medication, in the quantities prescribed, was, in the circumstances, significantly below the expected standard

279. This ground is formulated to correspond with authorities which establish that it may be inferred from a decision-maker’s failure to respond to a substantial, clearly articulated argument relying upon established facts, that the matter has not in fact been considered or that there has been a constructive failure to exercise jurisdiction: Dranichnikovv Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24] (Gummow and Callinan JJ; Hayne J agreeing).

280. I reject the submission articulated in the term of ground 4. It pays no regard to the Tribunal’s detailed reasoning, based on the expert evidence which was before them both orally and in writing. The Tribunal’s careful analysis of the experts’ opinions and the support, such as it was, for the use of HGH for anti-ageing was ample to deal with the appellant’s submission. Indeed, it is difficult to envisage what more the Tribunal could have said on the topic. Further, it is plain from the structure and content of the Tribunal’s reasons that it had regard to all of the Principal Member’s reasons. It was sufficient, where there was disagreement that they refer to the particular paragraphs and address them. It is not necessary, even for a judge, much less a Tribunal, to recite all of the evidence in the reasons. Reasons ought set out findings and reasoning: this task does not require (and is not improved by) a summary of the transcript or evidence.

281. For these reasons, ground 4 has not been made out.

Ground 5(b) and sub-ground (4) of ground 2: alleged error in rejecting the appellant’s evidence of particular consultations with patients except insofar as it was reflected in her contemporaneous clinical notes: [301], [331], [342]-[344] and [355](iv) and (vi)

282. The appellant challenged the Tribunal’s rejection of the appellant’s evidence of particular consultations ([344]) except in so far as it was reflected in her contemporaneous notes, which the Tribunal did accept, by reference to the paragraphs of the Tribunal’s reasons set out above.

283. The effect of the appellant’s submissions was that it was not open to the Tribunal to reject her evidence as to particular consultations where there was no evidence from patients to gainsay it and it had not been squarely put to her that her evidence was false. She also relied on the particular wording used by the Tribunal. Ms Mathur submitted that while it would have been open to the Tribunal to reject the appellant’s evidence on the basis that it was unreliable having regard to the length of the intervening period of four years between the particular consultation and the appellant giving her evidence in the Tribunal, that was not what the Tribunal purported to do. Ms Mathur submitted that the Tribunal engaged in a blanket rejection of the appellant’s evidence of particular consultations in so far as her evidence was not reflected in the clinical notes.

284. The high point of Ms Mathur’s submissions, which she submitted indicated that the Tribunal was applying a blanket rule rather than engaging in orthodox fact-finding, appears from the following extract from [344] (which is set out in full above):

The evidence of what occurred or what was undertaken at the time of the consultation is contained in the patient record. Oral evidence pertaining to specific consultations, some three or four years later, cannot replace a patient record which has been contemporaneously recorded and accordingly we reject the practitioner’s oral evidence on these points. If it is not in the patient record then the actions, justifications and monitoring did not occur despite the practitioner’s ex post facto assertions.

285. If indeed, Ms Mathur’s interpretation of the Tribunal’s reasons is correct, then this would amount to an error. However, I am not persuaded that the slight infelicity of language in [344] is a fair reading, when one has regard to the other paragraphs which deal with the same issue, which must bear on the way in which [344] ought be read, given the requirement to read reasons, particularly those written by non-lawyers, fairly and as a whole, without an eye attuned to error. For example, [355](iv) and (vi) make it clear that the Tribunal considers the appellant’s evidence of particular consultations (not her evidence as a whole) to be unreliable, having regard to the passage of time. It can also be seen that the Tribunal considered that the appellant had reconstructed the particular consultations, having regard to the reference to “[e]x post facto assertions in respect of patient consultations that occurred some four years prior [being] inherently unreliable” ([355](vi)).

286. It is true that the Tribunal’s reasons do not conform to the usual verbiage used by trial judges, such as, “[h]aving regard to the passage of time and the witness’ oral evidence, I do not regard the witness’ evidence of particular consultations as reliable except in so far as it is reflected in her clinical notes of such consultations. To the extent to which the witness purported to have a recollection of a particular consultation, I am not satisfied that it is any more than a reconstruction.” Had any one of the three members who constituted the majority of the Tribunal been a lawyer, such a statement may well have found its way into the reasons. There may, in a judge’s reasons, have been a reference to a well-known authority such as Onassis v Vergottis [1968] 2 Lloyd’s Rep 403, in which Lord Pearce said at 431:

It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance.

287. However, I consider it to be clear, when the Tribunal’s reasons are read as a whole, that it did not accept the appellant’s evidence of particular consultations beyond what was in the clinical notes because it considered such evidence to be unreliable, having regard to the passage of time and in light of the appellant’s oral evidence, which was replete with guesses and admissions as to lack of recollection. It was not, in these circumstances, incumbent on the Commission’s counsel, to do other than test the appellant’s memory in cross-examination, as she did, and submit that the appellant’s evidence was unreliable. Ground 5(b) and sub-ground (4) of ground 2 rely, in my view, on a pedantic view of the Tribunal’s reasons which is at odds with the approach sanctioned by the High Court in Liang and summarised by this Court in Orr. Neither ground has been made out.

Ground 6: alleged inadequacy of reasons as required by s 165M of the Law

288. Ms Mathur submitted that, while the Tribunal’s reasons were “lengthy and detailed”, they were “far from intelligible and clear”. She is critical of the Tribunal for responding to the Principal Member’s reasons rather than, presumably, starting afresh without reference to them, as would have been open to them. She submitted:

The Majority, unlike his Honour, has not produced a set of reasons which identify the central issues in dispute, the evidence that related to those matters, and reasons for their critical findings of fact to the Briginshaw standard. The Majority did not express a clear and reasoned view as to what the relevant standard was, or the ways in which the practitioner fell below, or significantly below, that standard. Unlike his Honour’s reasoning, it is difficult to discern from the Majority’s reasons whether or not they found that the practitioner’s conduct fell below, or significantly below the relevant standard because of the mere fact of off-label prescribing, a ‘one dose fits all’ approach, inadequate monitoring, financial incentive to prescribe somatotropin, a combination of those factors, or something else entirely.

289. The first sentence of this submission is, in effect, a complaint that the Tribunal (comprised of two medical practitioners and a General Member) did not write like a judge, whereas the Principal Member, who was a judge, did. The balance of the submission does not, in my view, give sufficient credit to the reasons of the Tribunal, when read fairly as a whole. The issues that arose were dealt with under convenient headings; the language was, when read fairly, reasonably clear. The Principal Member’s reasons were somewhat discursive and repetitive which may have infected, to a degree, the Tribunal’s reasons, because they were written in response to them. It is, in my view, plain that the Tribunal considered that the appellant’s conduct with respect to the first complaint fell below the relevant standard because of the combination of factors identified, including those identified by the appellant in the last sentence of the extract above.

290. For these reasons, ground 6 has not been made out.

Grounds 7(a) and (b): alleged factual errors relating to the appellant’s alleged failure to seek blood tests to measure the IGF-1 levels in patients prescribed with HGH and alleged lack of ongoing monitoring in the clinical records

291. In support of ground 7(a), the appellant relied on [297], [328], [331] and [355](i) and (ii). Ms Mathur submitted that the findings were erroneous because there was a plethora of evidence to support the administration of IGF-1 tests on the appellant’s patients and, accordingly, her monitoring of them. She submitted that leave ought be granted because this finding was so fundamental to the Tribunal’s reasoning. Ground 7(b) is related to ground 7(a) and relies on the factual finding in [331] that:

Professor Holmes-Walker conducted ongoing monitoring at least six months with IGF-1, lipids, glucose, blood pressure, weight and body mass index. All of these considerations are missing from the practitioner’s patient records.

292. Ground 7 has a degree of superficial attraction. The appellant’s clinical notes in respect of particular patients recorded that some IGF-1 tests were undertaken and the results noted.

293. However, the Commission submitted that a fair reading of the Tribunal’s reasons did not lead to the conclusion that the Tribunal considered that no such tests were done but rather that the Tribunal considered that such tests as were done were not done for the purpose of determining whether any of the patients had an excess of growth hormone (this being the relevant risk factor identified by Professor Carter in [296]).

294. I accept this submission. Although Ms Heger did not specifically refer the Court to the appellant’s admission in her reply, it is evident from the following admission that both the Tribunal’s finding and the Commission’s submission are soundly based (set out above but repeated for ease of reference):

I DISPUTE THAT IT WAS NECESSARY TO ORDER GLUCOSE/INSULIN TESTING TO DETERIMINE GROWTH HORMONE DEFICIENCY PRIOR TO PRESCRIBING FOR THIS PATIENT[.] GROWTH HORMONE DEFICIENCY WAS NOT WHAT WAS BEING TREATED. THE HGH MEDICATIONS WERE BEING USED “OFF LABEL” AND THE PATIENT WAS FULLY INFORMED OF THIS, AND OF THE RISK AND POSSIBLE BENEFITS, AND WAS HAPPY TO HAVE THIS REGIME PRESCRIBED. TO SEND THIS PATIENT FOR SUCH INVESTIGATIVE TESTING WAS NOT INDICATED.

(Capitals in original.)

295. It is apparent from the Commission’s particulars and the appellant’s response that the appellant accepted that she had not ordered tests to determine whether there was growth hormone deficiency before she prescribed Somatropin. Thus, the Tribunal’s findings were entirely in accordance with the appellant’s admission.

296. The Tribunal was careful in its reasons to qualify its finding that the appellant failed to order tests by purpose (to determine whether there was growth hormone deficiency) and by time (before she prescribed any Somatropin). To read its reasons otherwise is to fail to give each word its meaning in the sentence and in context. The qualifying words as to purpose and time are there because they have work to do. The Tribunal can be taken to be aware that the appellant conducted IGF-1 tests from time to time on her patients: it did not find to the contrary. But what it did find is that those tests were not done for the required purpose. This finding, far from being erroneous, was entirely uncontroversial. The appellant admitted that she had not done any such tests for that purpose before she prescribed Somatropin and maintained that it was not necessary that they be done. The Tribunal was entitled to accept that admission.

295. While, as referred to above, Ms Heger did not specifically rely in this Court on the appellant’s admission in her reply, the terms of the applicant’s admission are relevant to the question whether leave to appeal ought be granted with respect to ground 7.

296. As to ground 7(b), it was accepted that the appellant conducted some testing of her patients. The appellant’s expert, Associate Professor Holmes-Walker, said that monitoring of patients to whom HGH had been prescribed must be undertaken at intervals of no more than six months and must involve testing of the markers referred to by the Tribunal at [331]. As referred to above, Associate Professor Holmes-Walker regarded subjective patient assessments of well-being and “quality of life” as “singularly useless” and, therefore, of no value in assessing whether the risk of serious side effects had ensued. Her evidence was that the risk that was otherwise posed to patients who were prescribed Somatropin for “anti-ageing purposes” could only be mitigated by systematic monitoring by objective testing at the stipulated intervals of six months. The evidence established that, while the appellant performed some tests on her patients on an ad hoc basis, her monitoring fell far below what Associate Professor Holmes-Walker regarded as the minimum standard for a general practitioner prescribing Somatropin off-label.

297. The Tribunal’s findings in [331] could have been expressed differently and possibly more clearly. However, in light of the matters referred to above, I do not consider that ground 7 warrants a grant of leave to appeal. Even if there was, technically, a factual error in the Tribunal’s reasons I am not persuaded that it reflected a material misapprehension of the evidence.

298. For these reasons, I would refuse leave to appeal in respect of ground 7.

Conclusion

301. As I propose that the appeal be dismissed, the matter can proceed in the ordinary course to the second stage, at which the Tribunal is required to consider the appropriate order or orders to make as a result of its findings.

Proposed orders

302. For the reasons given above, I propose the following orders:

1. Refuse leave to appeal in respect of grounds 7(a) and (b).

2. Dismiss the appeal.

3. Order the appellant to pay the respondent’s costs of the appeal.

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Decision last updated: 16 May 2025