Eaton v Dental Board of Australia
[2012] VSC 510
•16 October 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
PRACTICE COURT
S CI 2012 5727
| Dr Michael Thomas Eaton | Plaintiff |
| v | |
| Dental Board of Australia | Defendant |
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JUDGE: | KYROU J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 October 2012 | |
DATE OF ORDER: | 16 October 2012 | |
DATE OF REASONS: | 31 October 2012 | |
CASE MAY BE CITED AS: | Eaton v Dental Board of Australia | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 510 | |
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ADMINISTRATIVE LAW – Decision by the Dental Board of Australia to suspend the plaintiff’s registration as a dentist under s 156(1)(a) of the Health Practitioner Regulation National Law – Compliance with the show cause process under s 157 is a condition precedent to the power to suspend – Requirements of the hearing rule of natural justice for the purposes of the show cause process – Those requirements were not complied with – Decision to suspend the plaintiff’s registration set aside.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Beale | J A Middlemis |
| For the Defendant | Mr A Clements | Colin Biggers & Paisley |
HIS HONOUR:
Introduction and summary
On 16 October 2012, I made an order setting aside the decision of the Dental Board of Australia (‘Board’) dated 4 October 2012 suspending the registration of the plaintiff as a dentist and informed the parties that I would deliver brief reasons at a later date. These are my brief reasons.
In form, the Board’s decision was to take immediate action against the plaintiff under s 156(1)(a) of the Health Practitioner Regulation National Law (‘National Law’),[1] suspending his registration to practise as a dentist (‘Decision’). On 10 October 2012, the plaintiff commenced this proceeding seeking judicial review of the Decision pursuant to O 56 of the Supreme Court (General Civil Procedure) Rules 2005.
[1]The National Law is set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) and applies in Victoria by virtue of s 4 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (‘HPRNL Act’).
The plaintiff has been registered as a general dentist with the Board and its predecessors since 8 December 1976. On 21 June 2003, the plaintiff suffered a stroke, which has caused weakness on the left side of his body.
On 29 February 2012, the Australian Health Practitioner Regulation Agency (‘AHPRA’) received a notification through the Board from a patient of the plaintiff regarding treatment for dentures that she received in 2009 and 2010. The notification stated that the plaintiff had suffered a stroke that appeared to make him ‘incompetent’.
On 16 May 2012, AHPRA received a notification through the Board from another patient of the plaintiff concerning extractions and crowns provided by the plaintiff between February 2011 and May 2011. The notification raised questions about whether the plaintiff had suffered further strokes.
On 17 September 2012, at the request of the Board, the plaintiff underwent a health assessment with a neuropsychiatrist, Dr Dennis Velakoulis.
On 21 September 2012, an AHPRA officer investigating the plaintiff spoke with Dr Velakoulis. That officer’s file note of the conversation (‘File Note’) relevantly recorded:
[Dr Velakoulis] is not concerned that [the plaintiff] suffers a major psychiatric illness. He has some cognitive impairment, but [Dr Velakoulis] didn’t feel he has enough of the background and medical history to reach fulsome conclusions on this …
…
As to immediate action [Dr Velakoulis] said: ‘My immediate sense was not that he’s an immediate risk, on the basis of what he told me he restricts himself to. That is, that he only performs simpler procedures. My view would change if he was continuing to do the work that got him into trouble, especially in the light of the cognitive difficulties I have observed’.
…
Dr [Velakoulis] felt that there should be some limit to the hours he works, as [the plaintiff] does fatigue. … Dr [Velakoulis] said that [the plaintiff] is virtually full time. … He questioned whether a load of 4 hours a day might be appropriate.
On 28 September 2012, the Board wrote to the plaintiff and gave him notice that it proposed to take immediate action under s 156 of the National Law in relation to his registration (‘Show Cause Letter’). The Show Cause Letter relevantly stated:
The Board is proposing to take this action because it reasonably believes that your alleged health poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety.
The Board has formed this view on the basis of Dr Velakoulis’ conversations with AHPRA, reporting on his assessment of you. … Amongst other things the Board was concerned that you do not appear to be limiting your practice to simple procedures, as advised by Dr Velakoulis, to allow for your health impairment. …
The Show Cause Letter referred to the notification that the Board had received from the patient of the plaintiff mentioned at [5] above. It also attached a copy of the File Note and relevant extracts from the National Law. The Show Cause Letter invited the plaintiff to make submissions to the Board by 12pm on 2 October 2012 and advised that the Board would decide whether or not to take immediate action against the plaintiff at a meeting of its Immediate Action Committee (‘IAC’) scheduled for 7.30pm on 4 October 2012 (‘Immediate Action Meeting’).
On 2 October 2012, the plaintiff’s solicitor wrote to AHPRA and requested an extension of time in which to make submissions in response to the Show Cause Letter until 12pm on 4 October 2012. The Board granted the plaintiff’s request.
On 4 October 2012 at 12.03pm, the plaintiff’s solicitor emailed to AHPRA the plaintiff’s submissions in response to the Show Cause Letter, together with a letter dated 3 October 2012 from the plaintiff’s treating general practitioner, Dr Adel Asaid. In his letter, Dr Asaid relevantly stated:
[The plaintiff] has suffered a stroke in 2003 as a result of right basal ganglia haemorrhage … The stroke left him with obvious weakness in his left side. However he has been in practice since that time.
[The plaintiff] has a good insight about his disability and his limits within his practice.
… [The plaintiff] also told me that he limits his practice to basic Dental procedure and mentoring the young generation.
…
As his condition is quite stable, I can’t see the need for any further investigation or referral (to a Neurologist) for the time being.
[The plaintiff] had informed me that he intended to limit his practice to basic dental procedures and mentoring …
I don’t believe that any major changes have occurred since he had the stroke.
…
Knowing [the plaintiff] personally and professionally I don’t believe that he would expose the community to any risk in any way.
On 4 October 2012, AHPRA received a report from Dr Velakoulis dated 26 September 2012 (‘Dr Velakoulis’ Report’),[2] which was emailed to the plaintiff’s solicitor at 2.49pm on that day. AHPRA’s email stated that the Board would consider Dr Velakoulis’ Report at its meeting that evening. Dr Velakoulis’ Report relevantly stated:
In terms of specific questions relating to his practice and his ability to practice, If I take only [the plaintiff’s] history it would appear that he is functioning well and that he has restricted himself to the procedures that he is capable of doing. On the other hand I have no external evidence that this is the case. Given [the plaintiff’s] significant cognitive difficulties with respect to memory, particularly non-verbal memory, I would have concerns about [the plaintiff’s] ability to practice. He may well be relying on knowledge learned and consolidated over many years of clinical practice. In this respect he may still be able to perform tasks and procedures that he has done hundreds of times. The difficulty will arise however if there are any complications or any novel aspects to a treatment procedure.
Within a clinical setting I would normally be organising for an MRI scan to further delineate the nature of the original haemorrhage and to identify whether there has been progressive sub-cortical vascular disease.
With regard to my opinion as to whether the practitioner practices his profession in an unsatisfactory way, I would have concerns about [the plaintiff’s] ability to practice at any level given my cognitive findings.
In terms of what further action should be taken, having discussed the issue with you on the phone, a local onsite assessment of [the plaintiff’s] performance followed by supervision of his performance may be appropriate.
In terms of the prognosis, it is difficult to know whether [the plaintiff’s] cognitive difficulties will progress but they are unlikely to resolve.
[The plaintiff] states that he is aware of his limitations and has made appropriate intervention to limit any issues for patients. My concern … is that if [the plaintiff] has sub-cortical vascular changes, frontal haemorrhage or frontal pathology there may well be a discrepancy between what he says should be done and what he actually does. This is a well known feature of frontal lobe pathologies. Thus, while [the plaintiff] can explain to people what he should be doing or not doing, these words do not translate into actions.
[2]The report was initially incorrectly dated 6 September 2012.
On the afternoon of 4 October 2012, the plaintiff’s solicitor sent two emails to AHPRA seeking an adjournment of the Immediate Action Meeting, to give the plaintiff an opportunity to properly address the ‘fresh [and] highly prejudicial material’ in Dr Velakoulis’ Report. The Board notified the plaintiff’s solicitor by an email at 5.58pm that the Immediate Action Meeting would not be adjourned. The IAC met at 7.30pm as scheduled and made the Decision. The plaintiff and his solicitor did not attend the meeting.
On 5 October 2012, AHPRA wrote to the plaintiff’s solicitor informing him of the Decision. The letter set out the reasons for the Decision and provided information on the plaintiff’s rights of appeal to the Victorian Civil and Administrative Tribunal (‘VCAT’). The letter relevantly stated:
Reasons for decision
On the basis of the evidence before it, the IAC reasonably believes that [the plaintiff] poses a serious risk to persons and it is necessary to take immediate action to protect public health or safety because:
Dr Velakoulis’ report expresses serious reservations about [the plaintiff’s] ability to practise dentistry safely. In particular, on the final page of his report, under the heading: ‘With regard to my opinion..’ Dr Velakoulis expresses ‘concerns about [the plaintiff’s] ability to practise at any level given’ [the plaintiff’s] cognitive findings.
In considering Dr Velakoulis’ report, the IAC noted particularly that it was based on Dr Velakoulis’ observations and assessments of [the plaintiff], and relied on [the plaintiff’s] own reports of his medical history and clinical practices. [3]
[3]The emphasis is original.
By originating motion filed on 10 October 2012 and returnable in the Practice Court on 16 October 2012, the plaintiff relevantly sought an order quashing the Decision on the ground that the Board had breached the hearing rule of natural justice.
Relevant provisions of the National Law
Section 3(2)(a) of the National Law provides that one of the objectives of the national registration and accreditation scheme for the regulation of health practitioners (‘Scheme’) is ‘to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered’.
Under s 3(3)(c) of the National Law, one of the three ‘guiding principles’ of the Scheme is that ‘restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality’.
Division 7 of Part 8 of the National Law, which is entitled ‘Immediate action’, confers on the Board the power to investigate a registered health practitioner and to take immediate action, which includes the suspension of that practitioner’s registration.
Section 155 of the National Law defines ‘immediate action’ relevantly as follows:
immediate action, in relation to a registered health practitioner… , means—
(a)the suspension, or imposition of a condition on, the health practitioner’s … registration; or
(b) accepting an undertaking from the health practitioner …; or
(c) accepting the surrender of the health practitioner’s … registration.
Section 156 of the National Law sets out the Board’s power to take immediate action in relation to a registered health practitioner. It relevantly provides:
156 Power to take immediate action
(1)A National Board may take immediate action in relation to a registered health practitioner … registered by the Board if—
(a) the National Board reasonably believes that—
(i)because of the registered health practitioner’s conduct, performance or health, the practitioner poses a serious risk to persons; and
(ii)it is necessary to take immediate action to protect public health or safety; …
…
(2)However, the National Board may take immediate action that consists of suspending, or imposing a condition on, the health practitioner’s … registration only if the Board has complied with section 157.
Section 157 of the National Law contains the ‘show cause process’ that the Board must undertake if it is proposing to take immediate action to suspend the registration of a registered health practitioner under s 156. Section 157 relevantly provides:
157 Show cause process
(1)If a National Board is proposing to take immediate action that consists of suspending, or imposing a condition on, a registered health practitioner’s … registration under section 156, the Board must—
(a)give the practitioner … notice of the proposed immediate action; and
(b)invite the practitioner … to make a submission to the Board, within the time stated in the notice about the proposed immediate action.
(2)A notice given to a registered health practitioner … under subsection (1), and any submissions made by the practitioner … in accordance with the notice, may be written or verbal.
(3)The National Board must have regard to any submissions made by the registered health practitioner … in accordance with this section in deciding whether to take immediate action in relation to the practitioner …
Section 158 of the National Law imposes a notice requirement on the Board upon its decision to take immediate action under s 156. It relevantly states:
158Notice to be given to registered health practitioner … about immediate action
(1)Immediately after deciding to take immediate action in relation to a registered health practitioner …, the National Board must—
(a)give written notice of the Board’s decision to the health practitioner …; and
(b)take the further action under this Part the Board considers appropriate, including, for example, investigating the practitioner … or requiring the practitioner … to undergo a health or performance assessment.
(2) The notice must state—
(a)the immediate action the National Board has decided to take; and
(b)the reasons for the decision to take the immediate action; and
(c)the further action the National Board proposes to take under this Part in relation to the health practitioner …; and
(d)that the registered health practitioner … may appeal against the decision to take the immediate action if the action is to suspend, or impose a condition on, the practitioner’s … registration; and
(e)how an application for appeal may be made and the period within which the application must be made.
Section 159(2) of the National Law provides that a decision of the Board to take immediate action to suspend a registered health practitioner’s registration continues to have effect until the decision is set aside on appeal or the earlier revocation of the suspension.
Section 199(1)(h) of the National Law provides that a person who is the subject of a decision of the Board to suspend his or her registration may appeal to ‘the appropriate responsible tribunal’. By virtue of s 6 of the HPRNL Act, the responsible tribunal in Victoria for the purposes of the National Law is the VCAT. Sections 202 and 203 of the National Law confer merits review jurisdiction on the VCAT.
The requirements of the hearing rule of natural justice
Generally speaking, the hearing rule of natural justice requires that, where a body proposes to make a decision that will prejudice a person, that body must give notice to the person of any adverse matters that it proposes to take into account and afford him or her a reasonable opportunity to respond to those matters before making the decision. The notice must set out sufficient information about the adverse matters to enable the person to know the substance of the case that he or she has to meet. In many cases, it will be sufficient for the person to be afforded the opportunity to respond in the form of a written statement without being afforded the opportunity to attend a face-to-face meeting or an ‘oral hearing’.[4]
[4]CECA Institute Pty Ltd v Australian Council for Private Education and Training (2010) 30 VR 555, 579 [116].
The precise requirements of the hearing rule vary depending on the circumstances of each case, including the nature of the proposed decision, the scope of the statutory provision or other source of legal power being exercised, whether an urgent decision is required, the consequences of not making an urgent decision and the severity of any prejudice to the interests of the person affected by the making of the decision. These factors can inform the level of detail that is provided to the person to be affected, as well as the length of time that he or she is afforded to respond before a decision is made.
It follows that the requirements of the hearing rule of natural justice are not a set of fixed or immutable obligations. Rather, they are flexible and can be adapted to accommodate variable circumstances.
Application of the hearing rule of natural justice to s 157 of the National Law
Mr Andrew Clements, who appeared for the Board, accepted that compliance by the Board with the show cause process in s 157 of the National Law is a condition precedent to the Board’s power to take immediate action under s 156 to suspend registration.
Section 157(1) of the National Law requires the Board to give notice to the registered health practitioner of the proposed immediate action. On a literal reading, a notice would suffice if it stated, ‘The Board proposes to take immediate action to suspend your registration. I invite you to make a submission about the proposed immediate action’. However, Mr Clements correctly conceded that s 157 requires more than this.
The key question is not whether s 157 of the National Law imposes natural justice obligations on the Board, but what those obligations require. In my opinion, the content of those obligations in the context of the hearing rule, rather than the bias rule, are those set out at [25] to [27] above. What the Board must do to comply with the hearing rule in a particular case will depend on the circumstances of that case.
For instance, in an emergency situation, where there is a present danger to the lives of patients, s 157 of the National Law could be complied with by a telephone call to the registered health practitioner informing him or her of the proposed immediate action and the reasons for it, and seeking an instant response before making a decision to take that action.[5] In the case of a long-standing investigation into complaints where the issues are not clear, where there is no imminent danger to the health of patients, and where there has been extensive correspondence with the registered medical practitioner, a written notice with detailed particulars and ample time within which to respond would be appropriate.
[5]Section 157(2) of the National Law expressly provides for verbal notices and submissions.
The present case has some of the features of the second example set out above. In all the circumstances, the Board was required to inform the plaintiff in writing of the substance of the matters alleged against him and to give him an adequate opportunity to respond to those matters before deciding whether to take immediate action to suspend his registration.
Was the hearing rule complied with in the present case?
Had the Board made the Decision on the basis of the File Note, it would have complied with the hearing rule of natural justice. The substance of the matters of concern to the Board based on the File Note were communicated in writing to the plaintiff on 28 September 2012 and he was ultimately given six days to respond. The plaintiff provided a detailed written submission prepared by his solicitors and this was supported by a letter from the plaintiff’s general practitioner.
However, the Decision was not based on the File Note, but on Dr Velakoulis’ Report. That report was provided to the plaintiff at 2.49pm on 4 October 2012, less than five hours before the meeting of the IAC at which the Decision was made. The nature of the matters in Dr Velakoulis’ Report to which the plaintiff was required to respond differed significantly from the matters in the File Note. Whereas the File Note indicated that Dr Velakoulis had no objection to the plaintiff performing simple procedures for four hours per day, Dr Velakoulis’ Report indicated for the first time that Dr Velakoulis considered that the plaintiff should not engage in any form of practice as a dentist. Also, unlike the File Note, Dr Velakoulis’ Report questioned the veracity of the plaintiff’s statements about the procedures that he performed.
Following receipt of the File Note on 28 September 2012, the plaintiff would have been entitled to prepare a response to the Board on the basis that, if he limited his practice and provided evidence from his general medical practitioner that he did not pose a danger to his patients, he might be able to persuade the Board not to take immediate action to suspend his registration.
That position changed, however, once the plaintiff received Dr Velakoulis’ Report. The report dramatically increased the risk of immediate suspension, based on expert advice that had not previously been communicated to the plaintiff. The substance of the new adverse matters upon which the Board proposed to rely was communicated to the plaintiff for the first time at 2.49pm on 4 October 2012. The plaintiff was entitled to a reasonable period from that time within which to seek legal and expert medical advice for the purpose of preparing a response to the new adverse matters. A period of less than five hours was insufficient for that purpose. As the Board did not afford the plaintiff a reasonable opportunity to respond to the matters upon which it proposed to rely adversely to the plaintiff’s interests prior to making the Decision, it failed to comply with the hearing rule of natural justice.
Should the Decision be set aside?
Ordinarily in a judicial review proceeding, where the Court finds that a decision was made in breach of the rules of natural justice, it will set aside the decision and remit the matter to the decision-maker to make a fresh decision according to law.
The remedy of setting aside a decision made in breach of the rules of natural justice, however, is discretionary. For example, the decision will not be set aside if it would be futile to do so. Another discretionary consideration is whether the plaintiff failed to take advantage of a more appropriate remedy that was available to him or her.
In the present case, Mr Clements submitted that the Decision should not be set aside on discretionary grounds because the plaintiff could have applied to the VCAT for merits review and for a stay of the Decision until the determination of the VCAT hearing.
Where a breach of the rules of natural justice has been established, the existence of review on the merits by the VCAT will not necessarily result in this Court refusing relief on discretionary grounds.[6] In the present case, the plaintiff acted promptly in seeking relief in the Practice Court. The hearing was relatively brief and straightforward. In those circumstances, the overarching purpose in the Civil Procedure Act 2010[7] and the broader interests of justice require that this Court grant the relief sought by the plaintiff, rather than refuse the relief and force the plaintiff to commence proceedings in the VCAT.
[6]Garde-Wilson v Legal Services Board (2008) 19 VR 398, 399 [2], 401 [9]-[11], 415 [99]-[100].
[7]Section 8(1) of the Civil Procedure Act 2010 requires this Court to give effect to the overarching purpose of the Act, as set out in s 7(1) of the Act, namely, ‘to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’.
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