Dr Kevan Joseph Fleming

[2002] NSWMT 5

New South Wales

Medical Tribunal

CITATION:	Dr Kevan Joseph Fleming [2002] NSWMT 5
TRIBUNAL:	Medical Tribunal
PARTIES:	Dr Kevan Joseph Fleming v. Health Care Complaints Commission
FILE NUMBER(S):	4000 of 2002
CORAM:	Patten DCJ at 1
CATCHWORDS:
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	16/7/02
DATE OF JUDGMENT:	16 July 2002

JUDGMENT:

MEDICAL TRIBUNAL OF NEW SOUTH WALES

MEDICAL PRACTICE ACT 1992

DEPUTY CHAIRPERSON: HIS HONOUR JUDGE PATTEN

16 July 2002

NO: 4000 of 02 – Dr Kevan Joseph Fleming

REASONS FOR DETERMINATION

This is an appeal pursuant to sec 88 of the Medical Practice Act (the Act), it being asserted by Dr K J Fleming, (the Appellant), that a Professional Standards Committee erred in law during the course of an inquiry conducted by it into a complaint concerning him. As required by sec 88 (3), the inquiry was adjourned pending disposal of the appeal. Before me, the Appellant was represented by Mr D Davies SC. Mr Lynch, who appeared for the Health Care Complaints Commission (HCCC) supported the appeal but Ms Eastman, for “the Respondent”, argued the contrary position. The Respondent named in the Notice of Appeal was “Professional Standards Committee”, but in reality I think Ms Eastman should be regarded as appearing for the NSW Medical Board (the Board).

For the most part, the relevant facts are not in dispute. Shortly, what occurred is that the Deputy Coroner, Ms Jan Stevenson, caused the clerk of the Westmead Coroners Court to refer to the Board, the question whether the actions of the Appellant, immediately prior to the death of a Mr Loftus, which the Coroner was investigating, amounted to unsatisfactory professional conduct.

The matter was referred by the Board to the HCCC pursuant to sec 50 (1) of the Act. The HCCC, in due course, formulated a formal complaint (the Complaint) against the Appellant and referred it to a Professional Standards Committee (the Committee) which was constituted for the purpose by Dr Katherine Ilbery (Chairperson), Ms Geri Ettinger and Dr John Woodforde.

The Committee notified interested parties of its intention to convene on 6 December 2001 to inquire into the Complaint. Before this date however, the HCCC decided to withdraw the Complaint and notified the Committee, the Board and the Appellant’s solicitor of its intention in that regard. The reason which prompted this decision was that the Medical Practitioner who had conducted a peer review of the Appellant’s conduct and had criticised such conduct decided to withdraw her criticism and notified the HCCC to that effect.

When the inquiry was called on for hearing by the Committee on 6 December 2001, Ms Helen Turnbull with Ms Karen O’Mullane announced their appearance for the Appellant, who was not personally in attendance, and Ms Lisa Fackender announced her appearance for the HCCC. What then transpired is, inter alia, summarised in a document over the signature of Dr Ilbery, headed “Reasons for Decision” (the Committee’s Record), the accuracy of which I accept for the purposes of these reasons. It is, I think, unnecessary, in light of the view I have formed about the matter, to consider the significance of further material as to what transpired before the Committee contained in the affidavits of Ms O’Mullane and Ms Fackender, sworn in relation to the appeal. The Committee’s Record does not purport to be a transcript or verbatim account of what transpired.

The Committee’s Record reveals that Ms Turnbull applied for an adjournment and foreshadowed a subsequent application that the inquiry be terminated. In support of her application she raised the following points:-

“(a) There was no existing complaint in relation to impairment and there exists other fora within the Medical Board to address matters relating to impairment.

(b) There was as yet no evidence before the Committee other than the Complaint, which the HCCC indicated it was intending to withdraw and no other material had yet been tendered. There was therefore no material for (the Committee) to consider and nothing on which to raise a further complaint.

(c) Rules concerning natural justice need to apply (to the Committee) including the right of (the Appellant) to be informed, have time to address the issues and the opportunity to reply. She submitted that it would be unfair for the Committee to proceed with a complaint relating to impairment without the above principles applied.


(d) The Committee’s role was not of investigator, rather this was the role of the HCCC.

(e) Were the Committee to proceed, “UMP” would be seeking advice regarding legal processes.”

After noting these points, the Committee’s Record continued:-

“At this stage the Committee foreshadowed the possibility of adding a further Complaint later in the proceedings after certain investigations had been made on the basis that Dr Fleming’s ill health was cited as the reason for his behaviour, the subject of the Complaint. The Committee noted that the peer reviewer had assessed Dr Fleming’s conduct as “below an acceptable standard of care”. The Committee pointed out its role is to ensure the protection of the public when considering a matter and the need to inform itself sufficiently in order to assess whether the safety of the public is at risk. The Committee made clear to other parties that, were it to add a further complaint against Dr Fleming, it would likewise consider the granting of an adjournment as appropriate.”

The Committee then adjourned to consider the application of Ms Turnbull which was supported by Ms Fackender. According to the Committee’s Record, when it resumed it made the following statements:-

“4.3.1 The Committee was properly constituted and was convened until such time as the Committee decided on its course of action and to do this it required Dr Fleming to be present.

4.3.2 The Committee noted the Board’s communications to the parties on 5 December 2001 that the Committee would proceed as scheduled on 6 December 2001.

4.3.3 Dr Fleming had not been excused from the inquiry and was required to be present. The Committee requested Ms Turnbull to ask him to attend and, failing her co-operation, declared its intention to issue a Summons to Appear for Dr Fleming to appear by 1400 that day. It was improper to interfere with Dr Fleming’s right to appear before the inquiry.

4.3.4 The strict rules of evidence do not apply and the Committee is to inform itself in any way it sees fit. The Committee were furnished the documents listed above by both the HCCC and Dr Fleming with the understanding that they ought to be thoroughly perused prior to the inquiry. Formal rules of evidence do not apply requiring formal tendering of documents prior to the documents being read.

4.3.5 PSCs can and do hear complaints in relation to impairment.

4.3.6 The Committee is always well aware of natural justice issues and of the option of adjourning if a new complaint is to be raised.

4.3.7 If the Committee decided to add an additional complaint, if necessary it would adjourn to give Dr Fleming the opportunity to reply.

4.3.8 In relation to impairment, Dr Fleming had raised the issue of his health and provided information from his treating endocrinologists in support of this.

4.3.9 At this stage the Committee informed the parties it wished to proceed to consider whether it should exercise its discretion to terminate the inquiry given that the HCCC wished to withdraw its complaint. The Committee considers that it should be satisfied that there is evidence to support the exercise of its discretion to terminate the inquiry.

4.3.10 Further, if the Committee were to proceed to consider the impairment issues raised by Dr Fleming, it would consider whether an adjournment was required and would seek the parties’ submissions.

4.3.11 The Committee also considered its duty to conduct an inquiry under the Medical practice Act 1992 (the Act)

4.3.12 The object of the Act as amended is to ensure the protection of the public. Section 2A of the Act provides:

(1) The object of this Act is to protect the health and safety of the public by providing mechanisms designed to ensure that:

(a) medical practitioners are fit to practise medicine, and

(b) medical students are fit to undertake medical studies and clinical placements.

(1) The Board must exercise its functions under this Act in a manner that is consistent with this object.

4.3.13 Section 176 (1) of the Act provides that the Committee may conduct the proceedings as it thinks fit. Schedule 2 of the Act then sets out specific provisions in relation to the conduct of the proceedings.

4.3.14 For the purposes of the application before the Committee, section 178(1) of the Act provides that the Committee may adjourn proceedings for any reason it thinks fit. The Committee did not consider that there were sufficient grounds to grant the adjournment in the present matter.

4.3.15 Having decided not to grant the adjournment, the Committee noted that Schedule 2 Clause 1 provides that:

1 Proceedings generally

In proceedings before it, a Committee or Tribunal is not bound to observe the rules of law governing the admission of evidence, but may inform itself of any matter in such a manner as it thinks fit.

4.3.16 In relation to the future course of the inquiry, the Committee considers that it should hear evidence from the treating endocrinologist of the practitioner. Arrangements had been made for the Committee to hear from Dr Weissberger, Dr Fleming’s treating endocrinologist on 6 December 2001. The Committee proposed to proceed to hear from Dr Weissberger at the appointed time. The Committee offered to arrange telephone conferencing should Dr Fleming wish to avail himself of the opportunity to participate.

4.3.17 The Committee notes that if the evidence from the treating endocrinologist raised concerns as to possible impairment affecting the safety of Dr Fleming’s practise of medicine, the Committee is empowered under Schedule 2 clause 5(2) to add a complaint either in addition to or instead of the initial complaint.

5 Additional complaints

(1) If, during any such proceedings, it appears to a Committee or the Tribunal that, having regard to any matters that have arisen, another complaint should have been made against the practitioner concerned:

(a) whether instead of or in addition to the complaint which was made, and

(b) whether or not by the same complainant,

the Committee or the Tribunal may take that other complaint to have been referred to it and may deal with it in the same proceedings.

4.3.18 In relation to the above issues the Committee is mindful of Schedule 2 Clause 10, which states:

10 Expedition of inquiries and appeals

(1) It is the duty of a Committee and the Tribunal to hear inquiries and appeals under this Act and to determine those inquiries and appeals expeditiously.

(2) Without affecting the generality of subclause (1), a Committee or the Tribunal may postpone or adjourn proceedings before it as it thinks fit.

Section 177(4) of the Act states:

177 Representation at inquiry

(4) This section does not prevent a Committee from proceeding in the absence of the practitioner concerned or the complainant, as long as they have been given notice of the inquiry.

The Committee noted that the practitioner had been given notice of the inquiry and that on the advice of his legal representatives had decided not to attend.

4.3.19 The Committee also notes that it may terminate proceedings if the complaint is withdrawn. Schedule 2 Clause 12(1) (c) of the Act provides:

12 Certain complaints may not be heard

(2) A Committee or the Tribunal may decide not to conduct an inquiry, or at any time to terminate an inquiry or appeal if:

(a) ……

(b) ……

(c) the complaint before the Committee or the Tribunal is withdrawn

4.3.20 The Committee considered the submission of the HCCC that the inquiry could be terminated. While the Committee may terminate the inquiry of its own motion, the Committee considers that it should only terminate an inquiry when it is satisfied that it is appropriate to do so in the circumstances. The Committee did not consider that there was sufficient evidence before it to be satisfied that it was appropriate to terminate the inquiry and will not exercise its discretion to terminate the inquiry at this stage. If either party wishes to make an application that the Committee terminate its inquiry, it is open to either of them to make such an application and submissions.

4.3.21 Accordingly, the Committee indicated that it wished to proceed to hear further evidence, in particular from Dr Weissberger, Dr Fleming’s treating endocrinologist.”

Professional Standards Committees are constituted pursuant to Pt 12 of the Act. By section 167 (2), a committee “has and may exercise jurisdiction and functions conferred or imposed on it by or under this Act”. Division 4 of Part 4 gives a Committee powers capable of impacting very significantly upon the practice of medicine by a medical practitioner. By section 168, the Board is to constitute a committee where the occasion arises by appointing three persons to sit “as the committee for the purpose of conducting an inquiry into the complaint …….”. Divisions 2 and 3 of Pt 12 regulate respectively the proceedings of committees and inquiries before committees. None of those provisions is relevant to the present case, with the exception of sec 176 (4) which provides that schedule 2 to the Act has effect with respect to any inquiry conducted by a committee.

Clauses 5 and 12 of Schedule 2 have some relevance to this matter, being in the following terms:-

“5 Additional complaints

(1) A Committee or Tribunal may in proceedings before it deal with one or more complaints about a registered medical practitioner

(2) If, during any such proceedings, it appears to a Committee or the Tribunal that, having regard to any matters that have arisen, another complaint could have been made against the practitioner concerned;

(a) whether instead of or in addition to the complaint which was made and

(b) whether or not by the same complainant,

the Committee or Tribunal may take that other complaint to have been referred to it and may deal with it in the same proceedings.

(3) If another complaint is taken to have been referred to a Committee or the Tribunal under subclause (2), the complaint may be dealt with after such an adjournment (if any) as is, in the opinion of the Committee or the Tribunal, just and equitable in the circumstances.”
“12 Certain Complaints May Not Be heard

(1) A Committee or the Tribunal may decide not to conduct an inquiry, or at any time to terminate an inquiry or appeal, if:

(a) a complainant fails to comply with a requirement made of the complainant by the Committee or the Tribunal, or

(b) the person about whom the complaint is made ceases to be a registered medical practitioner, or

(c) the complaint before the Committee or the Tribunal is withdrawn.

(2) A Committee or the Tribunal must not conduct or continue any inquiry or any appeal if the practitioner concerned dies.

(1) The power conferred on a Committee or the Tribunal by this clause may be exercised by the chairperson of the Committee or the Tribunal, and in such a case is taken to have been exercised by the Committee or the Tribunal.

Although Clause 12 of Schedule 2 uses the word “may”, it may be, in my opinion, that in a situation where the complaint has been withdrawn, the word should be construed as “shall”. (See for instance cases such as Re Fettell 52 SR 221). It is noteworthy that the clause seems to imply that there is no discretion to refuse to permit the withdrawal of a complaint and that being so, on the face of it there would be nothing left for a committee to inquire into. However, other judges seem to have taken the contrary view (eg. Judge Graham in Re Dr Ken Win-King Loi 21 November 2001), and I am content to accept the correctness of their opinions, namely, that, upon withdrawal of a complaint, a Committee or Tribunal has a discretion in relation to the conduct or further conduct of the relevant inquiry. That being said, it could only be rarely that upon withdrawal of a complaint, the discretion would be exercised otherwise than by terminating the inquiry.

In this case, according to the Committee’s Record, the Committee was not actually faced with an application to terminate the inquiry (although such an application was foreshadowed), but merely with an application for an adjournment.

Mr Davies submitted that the course which the Committee announced it intended to take involved errors of law, in so far as it contemplated the formulation, entirely on its own motion of a completely different complaint and the embarkation upon further investigations, including the taking of evidence, either formally or informally, from Dr Weissberger. Mr Davies also submitted that, in these matters, the Appellant was denied procedural fairness.

I am unable to conclude that there was an actual denial of procedural fairness, although there was potential for it, if the Committee pursued the course which it announced. In my opinion, however, the Committee did err in law in taking upon itself an investigative role. Its power was confined to that provided for by section 175 of the Act, namely, to inquire into any complaint referred to it.

It is doubtful, in my opinion, that Clause 5 of Schedule 2 authorises a Committee to formulate and inquire into a different complaint from the one before it, entirely of its own motion. As it seems to me, consistently with the scheme of the Act, Clause 5 contemplates a situation where, during the course of proceedings before a Committee, the complainant or another complainant seeks to raise a further complaint, in which case, the Committee, under the clause, may allow it to be dealt with, without the formality of a reference from the Board or the HCCC. The reference in clause 5 (2)(b) “whether or not by the same complainant” suggests to me that a Committee, when agreeing with a substituted or additional complaint, must have a complainant before it. It could offend basic tenets of natural justice if the Committee inquired into its own complaint as opposed to a substituted or additional complaint propounded by someone else. However, that question does not immediately arise in this case as the Committee had merely foreshadowed, the possibility of formulating a substituted or additional complaint.

It will, I think, suffice, for the purposes of the appeal before me, if I rule that, in my opinion, the Committee erred in law in determining, on its own motion, to proceed to hear further evidence, in particular from Dr Weissberger. The matter should be remitted to the Committee for further consideration in accordance with these reasons. I would expect that the Committee would exercise its discretion under clause 12 of Schedule 2 to terminate the enquiry but that, as I have indicated, is a matter for the Committee. As the Appeal was under sec 88 of the Act, I do not think that I have the powers conferred upon the Tribunal by sec 87.

At the hearing of the Appeal, the Appellant sought to rely upon an Amended Notice of Appeal which added an additional ground as follows:-

“(e) The Respondent lacked jurisdiction

(i) to add a complaint in relation to the impairment of the Appellant; and

(ii) to hear evidence in order to see if a further complaint against the Appellant should be added.”

The amendment was opposed but I think, in justice, it should be allowed as it broadly relates to the same subject matter as original ground (a) which was in these terms:

“(a) The Respondent failed to observe procedural fairness in determining to embark upon an enquiry other than the enquiry in respect of which the Appellant had been given notice.”

As the Appellant has been successful, albeit upon a ground of appeal raised shortly before the hearing, I think he should have his costs. I order the Board to pay the Appellant’s costs. Exhibits may be returned.