Fraser v Health Care Complaints Commission

[2015] NSWCA 421

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Fraser v Health Care Complaints Commission [2015] NSWCA 421
Hearing dates:	19 October 2015
Decision date:	23 December 2015
Before:	Basten JA at [1]; Ward JA at [86]; Leeming JA at [87]
Decision:	(1)   Dismiss the appeal against the decision of the Civil and Administrative Tribunal, Occupational Division, given on 30 July 2014.  (2)   Order that the appellant pay the respondent’s costs of the appeal.
Catchwords:	HEALTH PRACTITIONERS – disciplinary proceedings – appellant administered experimental cancer therapy – appellant’s registration cancelled after findings of unsatisfactory professional conduct and professional misconduct – whether Occupational Division of the Civil and Administrative Tribunal applied subjective test to determine that the appellant was recklessly indifferent as to whether the medical practitioner supervising administration of the therapy was registered in New South Wales – whether allegations properly put to the appellant in cross-examination – whether denial of procedural fairness   WORDS AND PHRASES – “reckless indifference”
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), Sch 5, Pt 6, cl 29 Health Care Complaints Act 1993 (NSW), s 34A Health Practitioner Regulation National Law (NSW), ss 139B, 139E
Cases Cited:	Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Banditt v The Queen (2005) 224 CLR 262; [2005] HCA 80 Briginshaw v Briginshaw (1938) 60 CLR 336 Browne v Dunn (1893) 6 R 67 Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 Ghali v Chief Commissioner of State Revenue [2013] NSWCA 340 Giudice v Legal Profession Complaints Committee [2014] WASC 115 Health Care Complaints Commission v Fraser [2014] NSWCATOD 29 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Wingate [2007] NSWCA 326 Lucire v Health Care Complaints Commission [2011] NSWCA 99 The King v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 Kural v The Queen (1987) 162 CLR 502 La Fontaine v The Queen (1976) 136 CLR 62 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 OV and OW v Members of the Board of the Wesley Mission Council (2010) 79 NSWLR 606; [2010] NSWCA 155 Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659 R v Brown [1996] AC 543
Category:	Principal judgment
Parties:	Nola Fraser (Appellant) Health Care Complaints Commission (Respondent)
Representation:	Counsel: Ms L Young/Ms M Daniels (Appellant) Ms N L Sharp (Respondent)   Solicitors: Juris Prudentia Legal (Appellant) Director of Proceedings, Health Care Complaints Commission (Respondent)
File Number(s):	2014/247072
Decision under appeal	Court or tribunal: Civil and Administrative Tribunal NSW Jurisdiction: Occupational Division Citation: [2014] NSWCATOD 84 Date of Decision: 30 July 2014 Before: Boland AM ADCJ (Chairperson); Ms M Ryan (Nurse member); Ms S Moore (Nurse member); Mr P Shearing (Lay member) File Number(s): 1420008

Judgment

1. BASTEN JA: Until 30 July 2014 the appellant, Nola Fraser, was a registered general nurse and midwife. On that day, the Occupational Division of the Civil and Administrative Tribunal (“NCAT”) cancelled her registration for professional misconduct. The basis of the finding of professional misconduct was set out in lengthy reasons delivered on 4 April 2014. The appellant now seeks to have that decision overturned and the complaint filed by the Health Care Complaints Commission (“the HCCC”) dismissed.

2. The complaint the subject of the hearing before NCAT was lodged on 6 March 2012 with the NSW Nursing and Midwifery Tribunal. The complaint not having been disposed of by 1 January 2014, when the bodies then dealing with complaints about health practitioners were abolished and their respective jurisdictions transferred to NCAT, Occupational Division, the complaint was determined by NCAT, pursuant to the transitional provisions of the Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”). The appeal to this Court arises under Sch 5, Pt 6 of the NCAT Act. The appeal may be made “as of right on any question of law, or with the leave of the court, on any other grounds.”[1] The appellant, not having sought leave to expand the available grounds, is restricted to an appeal on a question of law.

   1. NCAT, Sch 5, cl 29(4)(b).

3. The grounds of appeal fell into three categories, namely (a) those relating to the conduct of the proceedings as a whole; (b) those relating to specific aspects of the treatment of four patients, and (c) a claim that the penalty was “unjust”. The detail of the conduct complained of is conveniently addressed in relation to the specific complaints in category (b); nevertheless, some broad background must be provided in order to assess the complaints falling within category (a).

Findings of Tribunal

4. In May 2008 the appellant’s brother (referred to as Patient A) was diagnosed with non-Hodgkin’s lymphoma. Eschewing conventional treatment, he travelled to America to undergo treatment known as insulin potentiation therapy or “IPT”. The appellant travelled with him.

5. In August 2008 the appellant made contact with a former medical practitioner, Chittoor Krishnan, who had studied IPT in Austria. During 2009 and 2010 the HCCC alleged that the appellant was involved, with Mr Krishnan, in administering IPT or intravenous vitamin therapy (“IVT”) to four patients in Australia, including her brother. The Tribunal found that from 30 October 2008 to February 2010 the appellant was recklessly indifferent as to whether Mr Krishnan was a registered medical practitioner in New South Wales. The Tribunal was also satisfied that, from about 10 February 2010, the practitioner knew that Mr Krishnan was not registered. [2]

   2. Health Care Complaints Commission v Fraser [2014] NSWCATOD 29 at [305] (“Reasons”).

6. The document headed “Further amended complaint” set out two complaints, the first alleging “unsatisfactory professional conduct”, a term defined in s 139B(1) of the Health Practitioner Regulation National Law (NSW) (“the National Law”), the second alleging “professional misconduct”, a term defined in s 139E of the National Law.

7. Thus, complaint one commenced by stating that the practitioner was guilty of unsatisfactory professional conduct because the practitioner had:

“(i)   demonstrated that the knowledge or judgment possessed, or care exercised by the practitioner in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, and/or

(ii)   engaged in improper or unethical conduct relating to the practice or purported practice of nursing.”

8. The Court has noted on prior occasions that the habit of the HCCC in drafting complaints in this manner is to be deplored. [3] Statement of a number of different grounds of complaint identified within the statutory definition, without saying which is relied upon with respect to particular conduct, gives rise to a high degree of uncertainty, which is inappropriate in professional disciplinary matters. It is unfortunate that a statutory authority of long standing, with functions of high public importance in maintaining proper standards of health practitioners in this State, consistently disregards criticism of the manner of drafting complaints. In this case, the Tribunal itself added its voice to that criticism. [4]

   3. See, eg, Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [27]-[31]; Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323; [2007] NSWCA 326 at [13] and Lucire v Health Care Complaints Commission [2011] NSWCA 99 at [43].

   4. Reasons at [372].

9. After the reference to unsatisfactory professional conduct, there appears a heading “Background to Complaint One” which it is convenient to set out in full, to avoid further explanations as to the context of the complaints.

“Insulin Potentiation Therapy (IPT) is therapy used to treat cancer patients by intravenously administering insulin, to induce low blood sugar levels, together with low doses of conventional chemotherapy drugs. IPT is generally regarded by Australian medical practitioners involved in the treatment of cancer as experimental and not scientifically proven.

Intravenous vitamin therapy is a means by which doses of vitamins and nutrients are given to a patient through their circulatory system using either a drip or injection. Vitamins and minerals are put directly into the bloodstream, bypassing the gut.

A nurse may only administer a drug, vitamin or nutrient intravenously to a patient with the authorisation of a registered medical practitioner.

In the period from around August 2008 to 2 March 2010, the practitioner was party to an arrangement or understanding with Chittoor Krishnan that she would work for him on a casual basis as a registered nurse in providing IPT and/or vitamin therapy to cancer patients by using her skills as a nurse to provide and set up intravenous (“IV”) equipment with which to treat the patient; insert a cannula into the patient; connect the IV equipment to the cannula; administer the drugs to the patient via the IV equipment and monitor the provision of those drugs to the patient, as well as liaising with patients or potential patients in relation to IPT therapy (“Arrangement”).

The practitioner had no formal training in IPT.

At no relevant time was Chittoor Krishnan registered as a medical practitioner in New South Wales or elsewhere in Australia.”

10. The particulars of the conduct complained of were identified under complaint one. [5] The identification was ineptly drawn and potentially confusing: the Tribunal was, however, able to make sense of the particulars and made appropriate findings. With the exception of particular 7, all of the conduct complained of occurred in a period identified as between “around August 2008 to 2 March 2010” and was particularised in the following terms in particular 1 (the appellant being referred to as “the practitioner”):

1.1   on around 15 August 2008 and in around February 2009, IPT or alternatively, IVT, was provided to Patient A at the practitioner’s cosmetic and laser clinic in Narellan (“the Cosmetic Clinic”) or at the home of Patient A or the practitioner;

1.2   in around April 2009, IPT, or alternatively, IVT, was provided to Patient D at the home of Patient D in Westmead;

1.3   some time in 2009, IPT, or alternatively, IVT, was provided to Patient C at the home of Patient C in Edgecliff; and

1.4   some time in the period September 2009 to 1 March 2010, IPT was provided to Patient B at the Cosmetic Clinic.

5.    The particulars were numbered 1.1, 2.1 etc; as only 5 had sub-particulars (5.2 etc) and it was dismissed, the numbering will be simplified to particulars 1, 2, 3, etc.

11. The chapeau to particular 1 identified three elements said to have been common to each of the courses of conduct. The first element, which appears to have been by way of a definition of what was meant by “providing” treatment, alleged that the appellant “provided and set up IV [intravenous] equipment, inserted a cannula into the patient, connected the IV equipment into the cannula, administered drugs to the patient via the IV equipment, monitored the provision of drugs to the patient via the IV equipment and liaised with the patient about the treatment”. The second element alleged that this conduct was undertaken “under the supervision of Chittoor Krishnan”. The third element concerned the appellant’s mental state, being described as “either knowing or being recklessly indifferent to the fact that Chittoor Krishnan was not a registered medical practitioner”.

12. With respect to the treatment of Patient A, the Tribunal was not satisfied that the complaint was made out with respect to IPT[6] or with respect to IVT. [7]

    6. Reasons at [317].

    7. Reasons at [320].

13. Similarly, with respect to Patient C, the Tribunal was not satisfied that sub-particular 1.3 was made good. [8] Accordingly it dismissed the complaints contained in particular 1, so far as they concerned Patient A and Patient C.

    8. Reasons at [351].

14. With respect to Patient D, the Tribunal found that the appellant administered intravenous vitamin treatment to her at her home in Glebe. By inference, there was a dismissal of the complaint so far as the administration of IPT was concerned; the Tribunal held that the place of administration was immaterial (being Glebe, not Westmead) so long as there was no procedural unfairness, which it held there was not.

15. Sub-particular 1.4, relating to Patient B, was limited to the provision of IPT. The Tribunal upheld the particular. [9]

    9. Reasons at [363].

16. Adopting the simplified numbering system, particular 2 read as follows:

“2.   Between around August 2008 to 2 March 2010, the practitioner, in the presence of Chittoor Krishnan, administered IPT, which she knew was an experimental cancer treatment in Australia, to patient B and/or to Patient A … and/or to Patient C and/or to patient D on the occasions referred to in 1.1 – 1.4 above.”

17. The relationship between particular 1 and particular 2 was obscure. It gave rise to an unnecessary dispute in the Tribunal. The Tribunal was itself critical of the drafting, concluding at [372]:

“Argument on this topic could have been avoided if the particular itself clearly spelt out that it was asserted that the administration of IPT was outside the practitioner's scope of practice or skill base, or its administration demonstrated a lack of appropriate judgment by the practitioner.”

18. Nevertheless, the Tribunal accepted that the appellant had not been unfairly prejudiced by the inept drafting, for reasons which will be addressed below. The Tribunal concluded that “the particular is established”, apparently treating the references to the patients as meaning any one or more of them. That is, having upheld the complaint that IPT was administered to Patient B, it considered that that was sufficient to satisfy the terms of particular 2. It did so on the basis of the allegations in what was described as “Background”, set out at [9] above.

19. It is convenient to deal next with particular 4, which alleged that “[b]etween around August 2008 to 2 March 2010, the practitioner administered IPT and/or intravenous vitamin therapy to her brother (Patient A).” There were two differences between this particular and sub-particular 1.1. First, particular 1 alleged that the administration of drugs occurred “under the supervision of Chittoor Krishnan”: particular 4 did not. Secondly, sub-particular 1.1 was restricted to two particular periods, whereas particular 4 covered a broad period from August 2008 to 2 March 2010. In dealing with particular 1, the Tribunal had accepted that the practitioner did administer IVT to Patient A, but the finding was restricted to the period after November 2009. [10] With respect to particular 4, the Tribunal repeated its earlier finding that it was not satisfied that the practitioner administered IPT to her brother but was satisfied that she did administer IVT. [11]

    10. Reasons at [320].

    11. Reasons at [409] and [410].

20. Particular 3 was in the following terms:

“3.   Between around August 2008 to 2 March 2010, the practitioner obtained medication for the purpose of administering intravenous vitamin therapy and then administered intravenous vitamin therapy to Patient A (who was her brother), Patient C and Patient D, on the occasions referred to in 1.1 – 1.4 above, in the knowledge that a registered medical practitioner (a) had not written a prescription for the medication so administered; and (b) had not assessed the patient for the purpose of receiving intravenous vitamin therapy.”

21. The drafting again left much to be desired. Particulars 2 and 3 sought to deal separately with the two forms of therapy, particular 2 dealing with administration of IPT and particular 3 with IVT. The first limb of 3 involved obtaining medication for the purpose of administering IVT, the second limb (expressed conjunctively) dealt with the administration of IVT. The third limb, being the mental element, identified her knowledge that a registered medical practitioner had not been involved in the ways specified.

22. Particular 3 varied from particular 2 by abandoning the inherently ambiguous “and/or” phraseology in relation to the patients. However, it added another difficulty in that it referred to Patients A, C and D cumulatively in circumstances where the Tribunal might not accept the allegations with respect to each (and in fact dismissed the complaint with respect to Patient C). The Tribunal approached particular 3 on the basis that it contained several separate elements, and could be established in part only. With respect to Patient C, it confirmed its rejection of the sub-particular 1.3. [12] With respect to Patient D, the Tribunal referred to its finding as to sub-particular 1.2. [13]

    12. Reasons at [396].

    13. Reasons at [390].

23. With respect to Patient A, the Tribunal found that the medication was obtained by the appellant for her own use and was used by her and Patient A as they thought fit. Patient A had in fact been assessed by a doctor for the purpose of receiving IVT, but no prescription had been written for him. Accordingly (again treating the various elements of particular 3 disjunctively) the Tribunal accepted that it had been made out with respect to Patient A on the limited basis that the appellant knew that no medical practitioner had written the relevant prescription, within par (a).

24. Particular 6 was not pursued and may be disregarded. Particular 7 was in the following terms:

“7.   On around 18 November 2009, the practitioner participated with Patient A in the procurement of Blenoxane Powder (Bleomycin sulfate) from Dr Tendek for the purpose of the practitioner administering that medication to Patient A in the knowledge that the administration of that drug was not to be supervised by a registered medical practitioner.”

25. The Tribunal upheld particular 7.

26. Having made those findings with respect to the various particulars, the Tribunal then turned to consider whether the particulars found to have been proved demonstrated unsatisfactory professional conduct, concluding that they did. [14] Dealing with the second complaint, being that of professional misconduct, the Tribunal expressed its satisfaction that the cumulative effect of the particulars found to have been established was sufficiently serious to warrant suspension or cancellation of the appellant’s registration and that, as a result, the complaint of professional misconduct had been established.

    14. Reasons at [460].

27. The Tribunal dealt with the proceeding in two stages; liability having been determined on 4 April 2015, a second set of reasons was delivered with respect to the appropriate protective orders on 30 July 2014. [15] The effect of those orders was that (a) the appellant’s registration was cancelled; (b) she was precluded from seeking a review of the orders for a period of one year, and (c) she was required to pay 50% of the respondent’s costs.

    15. Health Care Complaints Commission v Fraser (No 2) [2014] NSWCATOD 84.

Grounds of appeal - reckless indifference

28. Grounds 1-9 all challenged, in various formulations, the finding by the Tribunal that, during the period from 30 October 2008 to February 2010 the appellant was “recklessly indifferent” as to whether Mr Krishnan was a registered medical practitioner in New South Wales. [16] The Tribunal stated:[17]

“We are also satisfied that the practitioner, by the time of the appointment with Dr Laverin, or at the latest on receipt of Mr K's email of 30 October 2008, which raised the question of his registration and asserted immigration problem, closed her mind, or deliberately ignored, the question of his registration status.”

16. Reasons at [305] (Chittoor Krishnan was referred to by the Tribunal as “Mr K”).

17. Reasons at [304].

29. The appellant accepted that this statement expressed a subjective test concerning the appellant’s state of mind. However, following a similar challenge to that considered in a Western Australian Court of Appeal decision, Giudice v Legal Profession Complaints Committee [18] the appellant submitted that the Tribunal had not in fact applied that test. Rather, it had applied an objective test as to what the appellant’s state of mind should have been, in the circumstances.

    18. [2014] WASCA 115.

30. Much judicial ink has been devoted to the meaning of the word “reckless”, whether used in adjectival or adverbial form, and in a variety of contexts, usually involving a provision in a statute. The result has been the unremarkable conclusion that meaning will depend on context. [19] As Lord Hoffmann explained in R v Brown,[20] in a passage cited with approval in Collector of Customs v Agfa-Gevaert Ltd:[21]

“The unit of communication by means of language is the sentence and not the parts of which it is composed. The significance of individual words is affected by other words and the syntax of the whole.”

19. Ghali v Chief Commissioner of State Revenue (2013) 85 NSWLR 378; [2013] NSWCA 340 at [21]; OV and OW v Members of the Board of the Wesley Mission Council (2010) 79 NSWLR 606; [2010] NSWCA 155 at [5]-[8] (Allsop P), [30] (Basten JA and Handley AJA).

20. [1996] AC 543 at 561.

21. (1996) 186 CLR 389 at 396-397.

31. Accordingly, as the meaning of an individual word will rarely, if ever, give rise to a legal rule or principle this line of jurisprudence need not be extended. Suffice it to say, as explained by Buss JA in Giudice, “[a] criminal offence may be created by statute with a criterion of intention, knowledge or awareness, recklessness or reckless indifference, or foresight with respect to some act, circumstance or consequence.”[22] In the present case, the language was to be found, not in a statute, but in the particular of a complaint of misconduct alleging that the appellant was “recklessly indifferent” to a fact or state of affairs, namely that Mr Krishnan was not a registered medical practitioner.

    22. Giudice at [83], referring to La Fontaine v The Queen (1976) 136 CLR 62 at 75-76 (Gibbs J); Kural v The Queen (1987) 162 CLR 502 at 504-505 (Mason CJ, Deane and Dawson JJ); Banditt v The Queen (2005) 224 CLR 262; [2005] HCA 80 at [6]-[8] (Gummow, Hayne and Heydon JJ) and Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659 (Abadee J).

32. The Tribunal accepted that the complainant was required to establish a particular state of mind on the part of the appellant. That did not require actual knowledge of Mr Krishnan’s status, nor an affirmative belief in the true position, namely that he was not registered. However, it was not sufficient to conclude that the appellant ought in all the circumstances, acting reasonably, to have entertained a doubt to as to whether Chittoor Krishnan was registered. Rather, it was necessary that the appellant, being aware of a real possibility that he might not be registered, closed her mind to that matter. To speak of a person closing her mind to a particular state of affairs carries the necessary implication that she is aware of the significance of the state of affairs. Nothing turned on that issue in the present case.

33. The basis upon which the appellant said that the Tribunal failed to apply the subjective standard of reckless indifference relied upon passages in which the Tribunal expressed itself in what appeared to be objective terms. However, as explained by Edelman J in Giudice:[23]

“It is possible that the references by the Tribunal to 'should have been aware' and 'should have considered' might be read as shorthand references to

A matter that any reasonable practitioner would have been aware so that the inference to draw from the circumstances was that this practitioner was aware that the statement might be untrue and made that statement without satisfying himself that it was true and regardless of the consequences.”

23. Giudice at [138].

34. The substance of the complaint arises from the following passage in the reasons of the Tribunal:[24]

    24. Reasons at [300]. (The numbering of subparagraphs has been inserted for ease of reference: the Tribunal used bullet points.)

“The following matters must have raised significant concerns in the practitioner about Mr K's registration status. We are comfortably satisfied the practitioner wilfully ignored these matters:

(1)   the practitioner heard Mr Ameisen ask to see Mr K's registration in circumstances where Mr K was anxious to obtain rooms. Mr Ameisen was willing, and indeed anxious, to have him practice from the Vita Centre but he did not produce his registration;

(2)   the practitioner was aware that Mr K came regularly to the Vita Centre after his first visit, but did not commence to practise there in circumstances where Mr K was continually seeking a venue from which to administer IPT;

(3)   Mr K's first consultation with Patient A, when confidential medical matters were discussed, took place in a café. This unorthodox venue should have raised some doubt in the practitioner's mind about his registration status (We reject the practitioner's explanation for accepting this venue was acceptable);

(4)   shortly after the café consultation the practitioner attended Dr Laverin's rooms when Patient A was accompanied by Mr K. The fact that a ‘doctor’ was accompanying a patient to another doctor's rooms must have indeed have raised Patient A[’s] and the practitioner's suspicions. (We do not accept … the practitioner's evidence that she did not read Mr K's emails concerning the consultation, and immediately after it occurred. We note the latter email describes Dr Laverin as a ‘fruitcake’. That is the description the practitioner asserted she gave to the HCCC in the record of interview);

(5)   the practitioner was aware from the consultation at Dr Laverin's rooms he was not satisfied that his professional indemnity insurance covered the administration of IPT. This fact must have raised a concern about Mr K's registration status and insurance;

(6)   the fact that Mr K told her the cost of IPT could not be claimed on Medicare;

(7)   even if the practitioner accepted chemotherapy drugs were cheaper in India or elsewhere overseas, she must have considered why a registered medical practitioner, who could write a prescription for chemotherapy drugs, would ask her to ring around to obtain the cheapest price for cytotoxic drugs. We do not accept a request in respect of drugs of this nature was analogous to the practitioner, in the course of her work at the Vita Centre, ringing companies to obtain the best price for therapeutic goods obtainable without prescription;

(8)   the inherent unlikelihood that Mr K had treated such a large number of patients in a very short period after obtaining his asserted qualifications; and

(9)   the practitioner was on notice from Mr K that he had problems with his registration, albeit he attributed these to ‘immigration’ issues.”

35. In terms of the first sentence, the finding that certain matters “must have raised significant concerns in the practitioner” should be understood as referring to an actual state of mind; it was not said that the matters “ought” to have raised a concern. The next sentence, speaking of the appellant “wilfully” ignoring matters also relates to a subjective state of mind. The first two subparagraphs involve facts known to the appellant which could reasonably give rise to the inference as to a subjective state of mind. Subparagraph (3) refers to the unorthodox venue which “should have raised some doubt” in the appellant’s mind. The Tribunal had already found that the appellant was “an experienced, intelligent, sophisticated professional of wide ranging experience in nursing.”[25] Given the surrounding passages, the language adopted should be understood in the way proposed by Edelman J, namely that because an experienced nurse, meeting a medical practitioner for a first consultation with a patient in an unorthodox venue, would have been conscious of the possibility that he was not registered, it could be inferred that the appellant, being an experienced nurse, was in fact aware of that possibility.

    25. Reasons at [298].

36. In the fourth subparagraph, a statement that the need for a patient in the care of a “doctor” to see another medical practitioner must have raised a suspicion should be understood as a finding that it did raise a suspicion.

37. Subparagraphs (5), (6) and (7) all identify facts of which the Tribunal found the appellant was aware, together with a finding that they “must have” raised a suspicion in her mind. Subparagraph (8) describes a matter of “inherent unlikelihood”; such a matter may properly form the basis for satisfaction that the appellant wilfully ignored the inference which could be drawn from the circumstance. Subparagraph (9) was a finding of awareness of the practitioner of the very matter which was the subject of the reckless indifference.

38. There is no substance in the complaint that the Tribunal did other than apply a subjective test, properly identified by it in its reasons.

39. The next matter arising from grounds 5-9 was the allegation that the appellant was denied procedural fairness because the complaints were not fully put to her in cross-examination. (Further specific allegations in the same form were raised with respect to particular complaints.)

40. A similar complaint was made before the Tribunal which, correctly, identified it as, in substance, an alleged failure to comply with the rule Browne v Dunn. [26] The Tribunal responded to that submission in the following passage:

“[292]   The Tribunal accepts that Ms Sharp did not directly put to the practitioner in cross-examination that she did not have an honest belief that Mr K was registered. But Ms Sharp did afford the practitioner multiple opportunities to deny the case advanced by the HCCC that she was aware there was a risk Mr K was unregistered and that she turned a blind eye, or closed her mind to that risk.

[293]   The particulars supplied by the HCCC, together with thrust of Ms Sharp's questioning of the practitioner, could have left her in no doubt that she was being challenged on the basis her asserted belief about Mr K's registration status was not honestly held. The practitioner steadfastly maintained her position that she honestly believed Mr K was at all material times, a registered medical practitioner.”

26.    Reasons at [291], referring to Browne v Dunn (1893) 6 R 67.

41. Although couched as a challenge based on procedural fairness, the challenge was, in effect, a challenge to the exercise of an evaluative judgment in the process of fact finding. In Minister for Immigration and Citizenship v SZMDS,[27] referring to the unreasonableness principle as a ground of review, Gummow and Kiefel JJ stated:

“The concern here is with abuse of power in the exercise of discretion, again on the assumption that the occasion for the exercise of discretion had arisen upon the existence of any necessary jurisdictional facts. Confusion of thought, with apprehension of intrusive interference with administrative decisions by judicial review will be avoided if the distinction between jurisdictional fact and other facts then taken into account in discretionary decision making is kept in view.”

27. (2010) 240 CLR 611; [2010] HCA 16 at [39] (citations omitted).

42. Once the concept of “jurisdictional fact” is expanded to include any state of opinion upon which the exercise of a statutory power is contingent, the likelihood of confusion concerning the scope of judicial review and, indeed, the scope of appeals limited to questions of law, will be magnified. For example, in the present case it can be said that the power of the Tribunal to make protective orders in the exercise of its disciplinary jurisdiction was contingent upon its satisfaction that a complaint of (say) professional misconduct had been established. Nevertheless, even on this approach, no question of law will arise unless, in the language of Latham CJ in The King v Connell; Ex parte The Hetton Bellbird Collieries Ltd, [28] the opinion was formed by taking into account irrelevant considerations, misconstruing the terms of the relevant legislation, or acting arbitrarily, capriciously, irrationally or for an improper purpose. Viewed in that way, the formation of the necessary opinion, like the exercise of discretionary power, can be challenged if it is seriously unreasonable. For that purpose, a more precise complaint is required than simply alleging that the fact finding process was procedurally unfair.

    28. (1944) 69 CLR 407 at 432.

43. The concept of procedural unfairness as a form of jurisdictional error and hence error of law, is best expressed, in relation to proceedings in a tribunal, as a failure to accord a party to the proceedings a reasonable opportunity to put his or her case. That is not the point being raised by this ground. Rather, the complaint is that there was no adequate challenge to the appellant’s evidence in cross-examination of her by the HCCC.

44. Browne v Dunn provides an interesting point of comparison. On a challenge to a solicitor’s retainer, a number of signatories to the document gave evidence that the retainer was genuine. None was cross-examined to suggest that that evidence was false, but the plaintiff nevertheless invited the jury to disbelieve the witnesses and find that the retainer was not genuine. The House of Lords rejected the legitimacy of that approach, a principle which is well understood and commonly applied and was carefully articulated by Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation. [29] However, as Hunt J noted, after setting out part of the opinion of Lord Herschell LC in Browne v Dunn: [30]

“His Lordship conceded that there was no obligation to raise such a matter in cross-examination in circumstances where it is ‘perfectly clear that (the witness) has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling’.”

29. [1983] 1 NSWLR 1 at 16-17.

30.    Allied Pastoral at 17D.

45. That passage encompasses the opinion expressed by the Tribunal, set out above. That approach was not unreasonable in the relevant sense, but was manifestly reasonable and open to the Tribunal. Accordingly, this ground of appeal should be rejected.

46. Finally, with respect to these grounds, there was a complaint that the Tribunal applied an incorrect standard of proof. The submission was based on the proposition that, in professional disciplinary proceedings, or at least in these particular proceedings, the Tribunal was required to apply the standard of comfortable satisfaction articulated in Briginshaw v Briginshaw. [31] A similar submission was put to the Tribunal and accepted by it, not merely by reference to the name of the case, but by including an extract from the judgment of Dixon J. [32]

    31. (1938) 60 CLR 336.

    32. Reasons at [314]; Briginshaw at 360-361.

47. This passage is to be found in the Tribunal’s reasons with respect to the first finding made, namely whether the appellant administered IPT to Patient A. The Tribunal concluded that “the evidence falls short of leaving us in a situation of being comfortably satisfied that she [did].”[33] As will be noted below, the Tribunal was discriminating in its approach to the evidence and was not satisfied as to a number of the allegations of misconduct. There is nothing in the reasons of the Tribunal to lead to the conclusion that it did not apply the correct standard of proof with respect to allegations which were upheld.

    33. Reasons at [317].

48. In oral argument, counsel for the appellant disclaimed reliance upon this ground of challenge except in relation to what were, in effect, attempts to reagitate findings of fact. This exercise should be rejected. While it is an error of law to make findings of fact where there is no supportive evidence, it is generally not open to an appellant, limited to grounds involving error of law, to challenge a finding of fact, which is supported by evidence, on the ground that one should infer that the Tribunal did not reach a comfortable satisfaction, although it said that it applied that standard. There may be cases in which it can be said that, on the primary facts as found, the material inference drawn by the tribunal was not reasonably open, but that was not this case; it could not be said that the findings identified were not reasonably open to the Tribunal.

49. What has been said so far requires the rejection of grounds 1-9 in the notice of appeal.

Patient D – administration of intravenous vitamin C

50. The Tribunal upheld particular 1.2, not in so far as it is alleged the administration of IPT, but in so far as it alleged administration of IVT to Patient D. However, the particular was upheld on the basis that the therapy was administered, not at her home in Bridge Street, Westmead, but at her home in Glebe. The Tribunal treated the location as pleaded to be erroneous, but immaterial. Patient D’s statement had been silent as to where the treatment occurred and it was the appellant who told the HCCC that the venue was Westmead. [34] The grounds of appeal (being grounds 10-13) did not complain of this variation from the particular, but rather alleged that the appellant did not know she was administering IVT without the authorisation of a registered medical practitioner.

    34. Reasons at [340]-[341].

51. The form of the challenge was inapt in so far as the conduct complained of occurred on 14 May 2009. That fell within the period during which the Tribunal held that the appellant was recklessly indifferent as to whether or not Chittoor Krishnan was a registered medical practitioner. [35] In an interview with an officer from the HCCC, the appellant said that she had obtained the vitamin C from Mr Ameisen,[36] a naturopath who had been removed from the register of medical practitioners in January 2009. [37]

    35. Reasons at [388].

    36. Health Care Complaints Commission, s 34A directed interview, 8 September 2010, pp 10-11.

    37. Reasons at [29].

52. The written submissions did not expand on these grounds. In oral submissions, counsel for the appellant accepted that, unless she succeeded on the challenge to the findings with respect to reckless indifference, there was no independent basis for grounds 10-14. [38] Grounds 10-13 should be rejected.

    38.    Tcpt, 19/10/15, p 48(40)-(49 line 1).

53. Ground 14 dealt with the reference to Patient B in particular 2. Again, its unavailability as a separate ground was conceded: it should be rejected.

54. Ground 19 dealt with a separate particular (particular 3) which, it was submitted, referred to the absence of any prescription from a registered medical practitioner, whereas the finding was said to be made in terms of the absence of an “order”. This complaint was raised by counsel for the appellant in the course of the hearing before the Tribunal and expressly dealt with by the Tribunal at [406]-[408]. There were specific and separate submissions made in respect of that ground but they were without substance: it must be rejected.

Particular 3 – Patient A

55. Grounds 15-18 challenged the findings in particular 3 with respect to the administration of alpha lipoic acid and glutathione to her brother, Patient A.

56. That she had administered these substances by intravenous injection was not in dispute. Rather, the issue was whether she had administered them in the knowledge that no registered medical practitioner had written a prescription for the medication so administered and no practitioner had assessed the patient for the purpose of the IVT. The Tribunal accepted that Patient A had been assessed by a registered medical practitioner, but found that the medicines had been obtained from another source, not pursuant to a prescription for use by Patient A, but in the appellant’s name. [39]

    39. Reasons at [407]-[408].

55. The submissions with respect to these grounds sought to create a degree of confusion from the drafting of particular 3. Like particular 1, it was directed to a global period, namely August 2008 to 2 March 2010. It also related to conduct identified with respect to individual patients during more limited time periods. The period with respect to Patient A was “in around” 15 August 2008 and February 2009; with respect to Patient D “around April 2009” and, with respect to Patient C, “sometime in 2009”. Carelessly, the drafter referred in particular 3 to the occasions referred to in sub-particulars 1.1–1.4, apparently not conscious that Patient B, who was the subject of sub-particular 1.4, had not been alleged to receive IVT. In any event, the period with respect to Patient A ended in February 2009.

56. In opening to the Tribunal, on behalf of the appellant (the respondent in the Tribunal) counsel had claimed that with respect to Patient A: [40]

“And yes, she did give him vitamin therapy, but it was with the knowledge and the consent, and indeed at the direction of, registered medical practitioners. Whether it’s Dr [Ameisen] or Dr Tendek, doesn’t really matter, but registered medical practitioners. In other words, Doctor Krishnan, no involvement in that at all.”

40.    Tcpt, 15/07/13, p 37(38)-(40).

59. The reference to Dr Tendek in this context was a distraction. The evidence was that she did not meet the appellant until March 2009, that is, after the relevant period of IVT with respect to the appellant’s brother identified in this particular. Dr Tendek, as recorded by the Tribunal, first met Patient A on 4 November 2009. [41] Mr Ameisen, a registered medical practitioner until January 2009, was not relied upon as the source of medicines in respect of Patient A. (Mr Ameisen referred Patient A to Professor Tattersall. [42] )

    41. Reasons at [110].

    42. Reasons at [57].

60. So far as the consultations with Dr Tendek were relevant, the evidence supported the findings made by the Tribunal. There is no substance in the complaint that particular 3, as it related to Patient A, should not have been upheld. Grounds 15-18 should be rejected.

Particular 4 – IVT and Patient A

61. Particular 4 asserted that the appellant administered IVT to Patient A during a longer period than that identified in particular 1, namely from August 2008 to 2 March 2010. The complaints (grounds 20-22) relied upon an allegation that the findings made were unsupported by evidence and without adequate reasons.

62. The submissions for the appellant accepted that there was evidence to support a finding that the appellant did administer IVT to her brother during the specified period. The complaint was that the claim of unsatisfactory professional conduct relied on with respect to this particular was based upon the fact that the administration of IVT was to a relative, namely her brother. The appellant alleged that there was no discussion of the real issue in controversy, namely whether it was unsatisfactory professional conduct for a registered nurse to provide treatment to a family member.

63. The findings of the Tribunal referred to, namely at [409] and [410] were findings of primary fact; they were not findings as to whether the administration of IVT to the appellant’s brother involved unsatisfactory professional conduct or professional misconduct: those matters were dealt with separately later in the reasons.

64. The expert evidence in that regard, contrary to the submissions of the appellant, had been discussed in some detail at [161]-[229]. The Tribunal set out the background of the expert, Ms Helen Miller, with respect to nursing practice, noting her qualifications, experience and academic background. [43] The Tribunal further noted her opinion that the administration of IVT to the appellant’s brother was “well outside the accepted boundary of practice”. [44] She had identified reasons for that opinion. The Tribunal also set out matters raised in cross-examination by the appellant’s counsel. The Tribunal noted that she had made concessions and had changed her opinion in respect of one aspect of her report. [45] Expert evidence as to the treatment provided by the appellant was also given by Professor Martin Tattersall and accepted by the Tribunal. [46] Further reference to the potentiality of IPT was given by Dr K Y Mark Wong and summarised by the Tribunal. [47] The Tribunal accepted his opinions with respect to the risks associated with both IPT and IVT and his view that “supervision of [IVT] by a medical practitioner is mandatory.”[48]

    43. Reasons at [161]-[162].

    44. Reasons at [196].

    45. Reasons at [207].

    46. Reasons at [208]-[220].

    47. Reasons at [221]-[229].

    48. Reasons at [226].

65. The appellant drew attention to the fact that, under cross-examination, Ms Miller accepted that she would not criticise the appellant’s treatment of her brother had it been “under the direction of a medical practitioner”. [49] It was alleged that there was a “controversy” raised by this answer which was not resolved by the Tribunal.

    49.    Tcpt 28/11/13, p 324(43).

66. In oral submissions with respect to particular 4, counsel for the appellant noted that it involved treatment of the appellant’s brother and continued: [50]

“The gravamen is it’s put as an absolute, you can’t treat your brother, that’s it. It can’t be the IPT, the vitamin therapy, that’s all held within one, two and three. This is just you cannot give treatment to your brother. That is there is no evidence, no guidance, nothing to support that ever being the case and Helen Miller addressed that ….”

50.    Tcpt 06/12/13, p 831(28).

67. The substance of the submission appears to have been that taken literally, particular 4 added nothing to the earlier particulars. That was not correct: it extended over a significantly longer period.

68. Nor was it necessarily correct to say that the gravamen was the same in each case, namely the absence of medical supervision. That was a common element, but, on the assumption that particular 4 was directed to the fact that Patient A was the brother of the appellant, that was, according to Ms Miller’s evidence, itself a significant consideration.

69. The Tribunal concluded that the appellant administered IVT therapy to Patient A “in circumstances which demonstrated her judgment possessed or care exercise[d] was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience”. [51] The Tribunal accepted Ms Miller’s opinions with respect to the administration of vitamin C to Patient D and the administration of IPT to Patient B. With respect to Patient A, the Tribunal accepted Dr Wong’s opinion that the administration of IVT “without adequate supervision was inappropriate.” Accordingly the Tribunal found that the conduct of the appellant in this regard fell significantly below the standard reasonably expected of her. [52] With respect to Patient A, the Tribunal said that, like Ms Miller, it had not ignored “the very difficult emotional position which confronted the practitioner when she learnt of her brother’s diagnosis, and faced with his calls on her professional skills leading to her involvement with Mr K.”[53] The Tribunal then noted the lack of “independent professional judgment” exercised with respect to Patient B and stated that “her lack of exercise of independent judgment is evident in respect of her involvement with her brother, Patient A.”[54]

    51. Reasons at [458].

    52. Reasons at [460].

    53. Reasons at [461].

    54. Reasons at [462].

70. It is not possible in the light of these findings to accept the criticism raised with respect to the Tribunal’s findings regarding particular 4. Grounds 20-22 must be rejected.

Particular 7 – procurement of Blenoxane powder for Patient A

71. Particular 7 related to the conduct of the appellant on or about 18 November 2009. It alleged that she “participated with Patient A” in the procurement of Blenoxane (or bleomycin sulfate) from Dr Tendek for the purpose of the appellant herself administering the medication to Patient A without the supervision of a registered medical practitioner. The challenges with respect to the Tribunal’s findings were in the same form as with respect to other matters, namely the denial of procedural fairness as a result of matters not being put to the appellant in cross-examination, findings not supported by the evidence and a failure to give adequate reasons for its decision. [55]

    55.    Grounds 25, 26 and 27.

72. Particular 7 was a late amendment to the complaint. The appellant’s written submissions asserted that the drafting was “opaque”, leaving some doubt as to precisely what was required to be established. There is some justification for that assessment, although particular 7 did not stand out in that respect. More importantly, any ambiguity should have been resolved at the hearing, assuming that counsel for the appellant thought it to be in her interest to do so. (In fact, counsel was at pains to restrict the HCCC to the complaints as pleaded.)

73. In November 2009 Patient A saw Dr Tendek on more than one occasion. On 5 November Dr Tendek referred him to St Vincent’s Hospital for insertion of a portacath to enable him to obtain intravenous therapy because of difficulty with venous access. [56] The Tribunal also found that “[o]n 18 November 2009 Dr Tendek prescribed Blenoxane Powder 15,000 iu for Patient A to be administered ‘As directed’.”[57] Patient A saw Dr Tendek on subsequent occasions through to 23 December 2009.

    56. Reasons at [113].

    57. Reasons at [114].

74. In dealing with this particular, the Tribunal noted a number of assertions by the appellant including that:

1. the appellant acknowledged that she administered medications to Patient A but also said that he self-administered on many occasions; [58]

2. the appellant acknowledged that she and Patient A attended Dr Tendek’s rooms in November or December 2009 but said that Patient A handed Dr Tendek a piece of paper said to have something written on it which had been prescribed by Dr Kalokerinos; [59]

3. the appellant acknowledged that Dr Tendek asked her if she would be administering the medication to Patient A, but the appellant said that she did not know what the medication was, but if Dr Kalokerinos, who had prescribed it, wanted her to administer it she would do so,[60] and

4. the appellant’s denial that she had ever administered bleomycin to Patient A. [61]

   58. Reasons at [444].

   59. Reasons at [445].

   60. Reasons at [446].

   61. Reasons at [446].

75. The Tribunal also noted that there was no record of a prescription for bleomycin dated 18 November 2009 in the records of the Pharmaceutical Benefits Scheme, notwithstanding the entry in Dr Tendek’s notes. [62]

    62. Reasons at [451].

76. Having assessed the evidence summarised above, the Tribunal concluded:

“[456]   … The practitioner gave evidence she consulted MIMS to ensure she had correct dosages and routes for medications she administered. She must have been aware the medication was prescribed by a registered medical practitioner, who was simply providing a prescription and leaving the administration of this dangerous drug to Patient A by her unsupervised. We were unable to accept the practitioner's evidence that she did not administer Bleomycin as truthful.

[457]   We find it is inherently probable having regard to Dr Dettman's evidence that the practitioner did administer Bleomycin intravenously to Patient A via a Portacath or PICC. The drug was procured from Dr Tendek in circumstances where it was known by the practitioner, and Dr Tendek, that its administration would not be supervised by her. We find this particular is proven to the requisite civil standard.”

77. There was a complaint that the appellant was not cross-examined as to whether she administered bleomycin to Patient A. However, she was cross-examined about the circumstances as far as that could be taken. When counsel for the HCCC put to the appellant Dr Tendek’s evidence that she (the appellant) had told her (Dr Tendek) that she was going to administer the bleomycin counsel appearing for the appellant objected. [63] Counsel for the HCCC invoked the rule in Browne v Dunn and, after some debate, the question was allowed. Some further questions were asked, but in the face of the denial on the part of the appellant with respect to the conversation, the matter could not be taken very much further.

    63.    Tcpt, 03/12/13, p 533(30).

78. There was evidence which suggested that Patient A would have difficulty in self-administering at that stage because of the difficulties in obtaining intravenous access. The appellant having stated that he self-administered medication, it was put to the appellant that that was a “complete fabrication”. The appellant responded: [64]

“No, that’s not a fabrication at all. His son often helped him.”

64.    Tcpt, p 539(18).

79. In paragraph 7 of her supplementary statement, dated 27 November 2013, the appellant said:

“I did not administer anything other than intravenous vitamins to [Patient A].”

80. In cross-examination she was asked: [65]

“Q. It is a lie at paragraph 7 when you suggest you did not administer anything other than intravenous vitamins to your brother?

A. That is not a lie, that’s the truth.”

65.    Tcpt, p 539(27).

81. The appellant’s submission that she was “not cross-examined about whether she did administer bleomycin to Patient A” was unsustainable. The allegation that, absent clarification of the meaning of particular 7 and cross-examination on it, the appellant was denied the opportunity of confronting the accusation cannot be accepted, in the light of the course the proceedings took in the Tribunal. It was arguable that particular 7 contained one allegation, namely participation with Patient A in the procurement of the medication and that the purpose characterised the procurement. An alternative reading was that the conduct the subject of the complaint was not merely the procurement of the medication, but also the administration of the drug by the appellant. It is doubtful whether this ambiguity worked adversely to the interests of the appellant. An available basis from which to infer that the purpose of procurement was to administer the drug was the fact that she did later administer it. Even on the first alternative understanding, that finding would have been material. On the second alternative, the finding was necessary for the complaint to be upheld. On neither view can the appellant complain that the finding was made.

82. The submissions otherwise explored in some detail the factual basis upon which the Tribunal concluded that the drug was procured on the date identified in particular 7. That exercise was, as the HCCC submitted, a challenge to the fact finding and thus beyond the scope of the appeal.

83. Grounds 25-27 should be rejected.

Penalty

84. There was a final challenge (ground 28) to the penalty imposed by the Tribunal, which was said to be “plainly unjust.” There were no written submissions in support of that ground and, in the course of argument, counsel for the appellant explained that the ground was consequential upon the appellant succeeding in her challenge to one or more of the particulars. Accordingly, the ground must be rejected.

Orders

85. The appellant has been entirely unsuccessful in her challenges to the findings of the Tribunal. The Court should make the following orders:

1. Dismiss the appeal against the decision of the Civil and Administrative Tribunal, Occupational Division, given on 30 July 2014.

2. Order that the appellant pay the respondent’s costs of the appeal.

86. WARD JA: I agree with Basten JA.

87. LEEMING JA: I agree with Basten JA.

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Endnotes

Decision last updated: 23 December 2015