Hampshire v Health Care Complaints Commission

[2021] NSWCA 283

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Hampshire v Health Care Complaints Commission [2021] NSWCA 283

Hearing dates:

22 October 2021

Date of orders:

19 November 2021

Decision date:

19 November 2021

Before:

Meagher JA at [1]
Gleeson JA at [2]
R A Hulme J at [101]

Decision:

(1)   Appeal dismissed.

(2)   Appellant to pay the respondent’s costs.

Catchwords:

PROFESSIONS AND TRADES – medical practitioners – challenge to finding of professional misconduct – where medical practitioner sent inappropriate text messages and voice messages to patient – where breach of health practice conditions limiting intake of alcohol and prescription medication – where conduct found to be unsatisfactory professional conduct – whether such conduct of “sufficiently serious nature” to warrant suspension or cancellation of registration – whether challenge to finding raises question of law

PROFESSIONS AND TRADES – medical practitioners – challenge to finding that not competent to practise – where medical practitioner admitted alcohol use disorder – where evidence that remission requires period of three years of abstinence – where medical practitioner not yet commenced period of abstinence – where alcohol dependence could grossly impair judgement and clinical ability – whether challenge to finding raises question of law

PROFESSIONS AND TRADES – medical practitioners – challenge to protective orders made by Tribunal cancelling medical practitioner’s registration – whether challenge involved question of law – where assertion that error of law in House v The King sense – whether Tribunal failed to consider effect of medical practitioner’s alcohol dependence – whether protective orders excessive – whether Tribunal failed to provide sufficient reasons

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), Sch 5, cl 29

District Court Act 1973 (NSW), s 18

Health Practitioner Regulation National Law (NSW), ss 3, 3A, 5, 139B, 139E, 144, 149A, 149B, 149C, 150, 165M

Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW)

Legal Profession Uniform Law (NSW)

Supreme Court Act 1970 (NSW), ss 48(1)(a)(iv), (vii), (b)(ii), (2)(f), 75A

Cases Cited:

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430

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

Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40

Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102

Gautam v Health Care Complaints Commission [2021] NSWCA 85

Gaynor v Burns [2016] NSWCA 44

Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303; [2020] NSWCA 122

Hampshire v Medical Council of New South Wales [2017] NSWCATOD 140

Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630

Health Care Complaints Commission v Dr Hampshire [2013] NSWCATOD 17

Health Care Complaints Commission v Do [2014] NSWCA 307

Health Care Complaints Commission v Sultan [2018] NSWCA 303

Health Care Complaints Commission v Hampshire [2020] NSWCATOD 79

House v The King (1936) 55 CLR 499; [1936] HCA 40

Lee v Health Care Complaints Commission [2012] NSWCA 80

Lindsay v Health Care Complaints Commission [2010] NSWCA 194

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

Sabag v Health Care Complaints Commission [2001] NSWCA 411

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

Category:

Principal judgment

Parties:

Dr Robert Bernard Hampshire (Appellant)
Health Care Complaints Commission (Respondent)

Representation:

Counsel:
Mr M Hutchings / Ms C Coventry (Appellant)
Ms P Lowson (Respondent)

Solicitors:
McConnell Jaffray Lawyers (Appellant)
Health Care Complaints Commission (Respondent)

File Number(s):

2020/236175

 Decision under appeal 

Court or tribunal:

Civil and Administrative Tribunal of New South Wales – Occupational Division Health Practitioner Division List

Jurisdiction:

Civil

Citation:

[2020] NSWCATOD 79

Date of Decision:

16 July 2020

Before:

Balla ADCJ, Dr J Saunders, Dr E Bernardi, S Lovorich

File Number(s):

2019/214150

HEADNOTE

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

The appellant, Dr Robert Hampshire, was a registered medical practitioner who commenced general practice in 1976 and as a consultant psychiatrist in 1988. Dr Hampshire has been the subject of several disciplinary proceedings and investigations prior to the conduct giving rise to the current proceedings. In May 2010, practice conditions were imposed on his registration, including conditions limiting his alcohol consumption and requiring that he abstain from taking sedative medications.

The present appeal relates to a complaint made in 2017 by a former patient (patient A), that Dr Hampshire sent sexually inappropriate text and voice messages to her following a consultation in relation to a medico-legal report in April 2017. Dr Hampshire’s registration was suspended by the Medical Council on 4 August 2017. Subsequently, in July 2019, the Health Care Complaints Commission filed a complaint in the NSW Civil and Administrative Tribunal (the Tribunal) alleging two counts of unsatisfactory professional misconduct (one relating to the boundary violation involving patient A and the other involving breaches of conditions of his registration limiting his consumption of alcohol and sedative medications), one count of professional misconduct, and further alleging that Dr Hampshire has an impairment and that he is not competent to practise.

At the hearing in November 2020, Dr Hampshire’s treating psychiatrist agreed that Dr Hampshire fulfilled the criteria for the diagnosis of an alcohol use disorder. The diagnosis had not previously been made. The alcohol use disorder was added as a particular of the complaints of impairment and not competent to practise and the proceedings were adjourned to permit further evidence to be adduced. Dr Hampshire relied on the expert opinion of Dr Apel who expressed the view that Dr Hampshire’s alcohol use disorder could be managed with conditions, but acknowledged that Dr Hampshire had not yet commenced a period of abstinence and that three years of abstinence would have to be demonstrated before the disorder could be said to be in remission.

On 16 July 2021, the Tribunal found Dr Hampshire guilty of the complaints and found that he was impaired because his alcohol use disorder can grossly impair his judgement and clinical ability, and that for that reason he was not competent to practise. The Tribunal cancelled Dr Hampshire’s registration with immediate effect and made a further order that he not make an application for review for a period of three years.

Dr Hampshire’s appeal against the Tribunal’s decision challenges:

the finding of professional misconduct;

the finding that he is not competent to practise; and

the protective orders as being excessive; or, in the alternative, that the Tribunal’s reasons for rejecting the evidence of Dr Apel were inadequate.

Held, dismissing the appeal (per Gleeson JA, Meagher JA and R A Hulme J agreeing):

As to the first challenge

The challenge to the finding of professional misconduct does not raise any question of law. Whilst the finding involved an evaluative judgement by the Tribunal, it was not a discretionary decision to which error in the House v The King sense would apply: [51]-[52].

The finding that Dr Hampshire’s conduct in relation to patient A was both “significant” and “serious” was well-open to the Tribunal; the conduct was directed to a vulnerable and much younger patient, was not fleeting, went on for several hours, it was overtly sexualised and unwanted, and Dr Hampshire’s persistence and conduct appeared to have a tone of harassment: [56].

The Tribunal did not fail to consider the evidence attributing Dr Hampshire’s conduct in relation to patient A to his alcohol use disorder. The weight to be given to that evidence in assessing the serious nature of the conduct was a matter for the Tribunal: [57].

As to the second challenge

The Tribunal’s finding that Dr Hampshire is not competent to practise is not a discretionary decision to which the principles in House v The King apply. No question of law is raised by this challenge: [75].

Lee v Health Care Complaints Commission [2012] NSWCA 80 referred to.

The Tribunal did not fail to consider the effect of Dr Hampshire’s addiction to alcohol on his conduct; rather, it was only after considering the effect of his addiction, including the evidence of Dr Apel, that the Tribunal came to the conclusion that Dr Hampshire is not competent to practise: [81]-[82].

As to the third challenge

The challenge to the exercise of a discretionary power by the Tribunal to cancel Dr Hampshire’s registration and order a three-year non-review period raised a question of law insofar as it was demonstrated that there was error in the House v The King sense: [76].

Dr Hampshire’s conduct in relation to patient A was the result of the consumption of alcohol and sedative medication in breach of the conditions of his registration on a single day. The Tribunal addressed the risk that similar conduct could occur at any time during the remission phase of his alcohol use disorder. The Tribunal did not address the wrong question or fail to address the question at all: [85]-[86].

Whether there was no appropriate alternative to cancellation of registration was a matter of judgement for the Tribunal. The Tribunal had regard to the relevant evidence, including Dr Apel’s opinion; it was not required to accept his opinion that monitoring and supervision was appropriate. It was well-open to the Tribunal to find that the proposed conditions did not address the risk to the health and safety of the public: [90]-[92].

Lee v Health Care Complaints Commission; Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; Sabag v Health Care Complaints Commission [2001] NSWCA 411 referred to.

The Tribunal gave adequate reasons for rejecting Dr Apel’s opinion that Dr Hampshire’s impairment because of his alcohol use disorder could be addressed by imposing conditions on his practice.

Gautam v Health Care Complaints Commission [2021] NSWCA 85; New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 referred to.

Judgment

1. MEAGHER JA: I agree with the reasons and proposed orders of Gleeson JA.

2. GLEESON JA: The appellant, Dr Robert Hampshire, was a registered medical practitioner who commenced general practice in 1976 and as a consultant psychiatrist in 1988. He has practised as such since that date up until August 2017, except for several significant periods referred to below.

3. On 16 July 2021, the NSW Civil and Administrative Tribunal (the Tribunal), sitting in its Occupational Division, determined a complaint brought by the Health Care Complaints Commission (the Commission) against Dr Hampshire. The Tribunal found Dr Hampshire guilty of two complaints of unsatisfactory professional misconduct pursuant to s 139B(1) of the Health Practitioner Regulation National Law (NSW) (the National Law) and one complaint of professional misconduct pursuant to s 139E of the National Law. The Tribunal also found that Dr Hampshire was impaired within the meaning of s 5 of the National Law because his alcohol use disorder could grossly impair his judgement and clinical ability, and for that reason that he was not competent to practise. The Tribunal cancelled Dr Hampshire’s registration with immediate effect on 16 July 2020 and made a further order that he not make an application for review for a period of three years: Health Care Complaints Commission v Hampshire [2020] NSWCATOD 79.

4. Dr Hampshire appeals against the Tribunal’s decision. He does not challenge the Tribunal’s finding of unsatisfactory professional conduct or the finding of impairment. He challenges the finding of professional misconduct and the finding that he is not competent to practise his profession. He also challenges the protective orders as being excessive and seeks in lieu orders for a period of suspension, a reprimand, and the imposition of practice conditions.

5. For the reasons that follow, the appeal should be dismissed.

Background

6. In 1992, a Professional Standards Committee determined that Dr Hampshire suffered from an impairment because of his addiction to pethidine. Conditions were placed on his registration including requirements to undergo urine drug testing, work in a group practice and undergo psychiatric treatment. In December 1994, he was de-registered for two years for professional misconduct for breach of these conditions; he was subsequently re-registered in December 1999.

7. In August 2009, Dr Hampshire’s name was removed from the Register as he failed to complete the annual renewal registration due to the non-payment of fees and his lack of professional indemnity insurance. Following a Schedule 1 inquiry by the Medical Board of NSW in May 2010, Dr Hampshire was re-registered with practice and health conditions imposed, which included: (1) to limit his alcohol consumption to no more than 2-3 standard drinks in any 24-hour period with two alcohol-free days per week (private health condition 8); (2) to abstain from the use of any sedative medications including benzodiazepines and zolpidem (private health condition 9); and (3) to seek Medical Council approval prior to changing the nature or place of his practice (public practice condition 6). He was again unregistered for a short period between June and July 2011.

8. In September 2013, Dr Hampshire was found guilty of unsatisfactory professional misconduct by the Medical Tribunal for practising without professional indemnity insurance from 1 January 2008 until 3 August 2009, breach of a condition prohibiting him from consulting with any more than 25 patients per week, and breach of a condition requiring him to be assessed by an approved registered medical practitioner prior to commencing work each day: Health Care Complaints Commission v Dr Hampshire [2013] NSWCATOD 17.

9. On 4 August 2017, Dr Hampshire’s registration was suspended by the Medical Council at the conclusion of a hearing pursuant to s 150 of the National Law, following a complaint made by a patient (referred to as patient A) concerning Dr Hampshire’s conduct in April 2017. An application for a stay of the suspension of his registration was dismissed by the Tribunal: Hampshire v Medical Council of New South Wales [2017] NSWCATOD 140.

The Complaint

10. On 10 July 2019, the Commission filed a complaint against Dr Hampshire in the Tribunal alleging two counts of unsatisfactory professional misconduct, one count of professional misconduct, and further alleging that he has an impairment and is not competent to practise: National Law, s 144(b), (c) and (d).

11. Under the National Law, “unsatisfactory professional conduct” is defined in s 139B(1) as including, relevantly:

(a) Conduct significantly below reasonable standard

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

…

(c) Contravention of conditions of registration or undertaking

A contravention by the practitioner (whether by act or omission) of—

(i) a condition to which the practitioner’s registration is subject; or

(ii) an undertaking given to a National Board.

12. The definition of “professional misconduct” focuses on conduct sufficiently serious to justify suspension or cancellation. Professional misconduct is defined in s 139E to mean:

(a)    unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration; or

(b)    more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration.

13. The definition of “impairment” in s 5 of the National Law includes a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence), that detrimentally affects or is likely to detrimentally affect the person’s capacity to practise as a doctor.

14. Complaint 1 alleged unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law, involving serious boundary breaches by Dr Hampshire on 14 and 15 April 2017 in his communications with patient A, a 30-year old woman, who had attended a consultation in Coffs Harbour for a medico-legal report on 7 April 2017. The communications involved telephone calls, text messages and voicemails, including communicating orally or by text on 14 April 2017 the words “[a]re you feeling sexy?”, “I’m feeling sexy [patient A] Are you naked?” and “[patient A] take it off, take it off, take it off …”. Dr Hampshire admitted the text messages.

15. Complaint 2 alleged unsatisfactory professional conduct under s 139B(1)(c) of the National Law, relating to a contravention of three conditions on Dr Hampshire’s registration. The breaches of private health conditions 8 and 9 occurred over several years between 2015 and 2017 and were admitted. Although breach of public practice condition 6 was not admitted, Dr Hampshire conceded before the Tribunal that a finding was open that he had contravened this condition. In this Court, Dr Hampshire conceded that the evidence established breach of the public practice condition by having visited regional locations for medico-legal consultations.

16. Complaint 3 alleged that complaints 1 and 2, individually or collectively, amounted to professional misconduct under s 139E of the National Law.

17. Complaint 4, as amended, alleged that Dr Hampshire has an impairment within the meaning of s 5 of the National Law. The amended particulars of this complaint relied upon by the Commission were that Dr Hampshire was suffering from: (1) cognitive deficits, (2) depression and (3) alcohol use disorder and alcohol dependence. Dr Hampshire admitted the particulars in (2) and (3) and some of the cognitive deficits in (1).

18. Complaint 5, as amended, alleged that Dr Hampshire is not competent to practise within the meaning of s 139(a) of the National Law due to a lack of mental capacity to practise as a medical practitioner. The sole particular of this complaint relied upon by the Commission was that Dr Hampshire “suffers from alcohol use disorder and alcohol dependence”. Although this particular was admitted, the complaint itself was denied by Dr Hampshire.

The course of the hearing before the Tribunal

19. The hearing before the Tribunal took place over four days commencing on 19 November 2019. On the third day of the hearing, evidence was given by Dr Michael Armstrong, Dr Hampshire’s treating psychiatrist, who agreed with the proposition put by a member of the Tribunal that Dr Hampshire’s symptoms fulfilled the criteria in DSM-5 for the diagnosis of an alcohol use disorder and alcohol dependence. (DSM-5 refers to Diagnostic and Statistical Manual of Mental Disorders and is the standard classification of mental disorders used by mental health practitioners.) Dr Armstrong had not previously made that diagnosis. Dr Hampshire then gave evidence. He accepted that he had an alcohol use disorder/alcohol dependence. The Commission applied for and obtained leave to add this as a particular of complaints 4 and 5.

20. On the following day, Dr Hampshire filed an amended reply formally admitting the new particularised allegations under complaints 4 and 5 but denying that he was not competent to practise. After Dr Hampshire concluded his evidence, the proceedings were adjourned on his application to permit further evidence in relation to the issue raised by this new particular. Dr Hampshire relied upon a report from Dr Greg Apel dated 19 February 2020 which addressed two questions: (1) given Dr Hampshire’s alcohol-related disorders, does he have the capacity to practise medicine safely, and (2), if he does, what conditions would be appropriate. The Commission did not adduce any expert evidence in response. Dr Apel gave oral evidence at the adjourned hearing before the Tribunal on 21 May 2020.

19. In his report, Dr Apel diagnosed Dr Hampshire as having a major depressive disorder, which is in remission, and an alcohol use disorder. He expressed the view that the impairment caused by Dr Hampshire’s alcohol dependence could be adequately managed with appropriate monitoring and supervision. He considered that controlled drinking was not a viable approach and recommended full abstinence. He also recommended that Dr Hampshire be supervised by a psychiatrist experienced in alcohol use, the cessation of use of Ritalin, and a return to medical practise for a restricted number of hours per week.

20. In his oral evidence, having consulted with Dr Hampshire on two occasions in late January and early February 2020, Dr Apel said that although he minimised his alcohol intake, he had not yet accepted that he had a problem that needed to be addressed. He accepted that Dr Hampshire would have to demonstrate abstinence for a three-year period before being said to be in remission. He agreed that the chances of relapse during that period was ever present and said that it was too early to assess the likelihood of Dr Hampshire recovering from his impairment.

21. In its supplementary written submissions before the Tribunal, the Commission submitted that Dr Apel’s opinion that Dr Hampshire was capable of abstinence was based on nothing more than “hope” and should be rejected by the Tribunal. The Commission sought orders cancelling the registration of Dr Hampshire with immediate effect and precluding an application for review for a period of three years.

22. In his supplementary written submissions, Dr Hampshire acknowledged that Dr Apel had agreed that it could take some years of abstinence from alcohol in order to establish whether a person’s alcohol use disorder was in remission, and accepted that the DSM V criteria referred to a period of three years’ abstinence which Dr Hampshire had not demonstrated. Nevertheless, it was submitted that the orders sought by the Commission would be disproportionate to the impairments which led Dr Hampshire to act as he did towards patient A and would be contrary to the expert opinion evidence of Dr Apel. It was submitted that the Tribunal should reprimand Dr Hampshire and find that he is competent to practise, subject to conditions being placed on his registration.

Legislative scheme

25. Where the Tribunal finds that a registered health practitioner is guilty of professional misconduct or is not competent to practise the practitioner’s profession, the Tribunal may suspend or cancel the practitioner’s registration: s 149C(1). The Tribunal may also order that an application for review of the order under Division 8 may not be made until after a specified time: s 149C(7).

26. Where the Tribunal finds that a registered health practitioner is guilty of unsatisfactory professional misconduct or professional misconduct and no other order, or combination of orders, is appropriate in the public interest, the Tribunal may impose a fine: s 149B.

27. Where the Tribunal otherwise finds the subject matter of the complaint against the practitioner to have been established, the Tribunal may do any one or more of the following: caution or reprimand the practitioner, impose conditions, order the practitioner to undergo treatment or counselling, order the practitioner to complete an educational course, order the practitioner to report on the practitioner’s practice, or order the practitioner to seek and take advice in relation to the management of the practitioner’s practice: s 149A(1).

The findings of the Tribunal

28. After reviewing the evidence in relation to the five complaints, the Tribunal found that Dr Hampshire was not a reliable historian (at [95]), and concluded that it did not accept his evidence where it was inconsistent with other evidence unless it was corroborated by other reliable evidence: at [124].

29. The key findings of the Tribunal were as follows.

30. First, in addition to Dr Hampshire’s admission of the text messages, the other particulars of complaint 1 were made out based on the evidence of patient A, who had been cross-examined and whose evidence was accepted. Dr Hampshire conceded that he was guilty of unsatisfactory professional misconduct and the Tribunal so found: at [141]-[142]. (The reference in the Tribunal’s reasons to s 139B(1)(c) of the National Law is an obvious error. This should be understood as s 139B(1)(a).) The Tribunal concluded that the boundary breaches were serious in nature: at [152].

31. Second, as to complaint 2, the breaches of private health conditions 8 and 9 were conceded by Dr Hampshire and the breach of public practice condition 6 was established: at [145]-[147]. Dr Hampshire was found guilty of unsatisfactory professional misconduct under s 139B(1)(c). The Tribunal concluded that the failure to comply with the conditions of Dr Hampshire’s registration was serious in nature: at [153].

32. Third, given the serious nature of complaints 1 and 2, individually or together, the Tribunal found Dr Hampshire guilty of professional misconduct under s 139E: at [154]-[155].

33. Fourth, Dr Hampshire suffered from an impairment regarding aspects of his mental functioning, because of his depression, and by reason of his alcohol use disorder/alcohol dependence: at [156]-[160].

34. Fifth, the impairment consequent upon the alcohol use disorder/alcohol dependence meant that Dr Hampshire was not competent to practise: at [161]-[165].

Right of appeal to Supreme Court

35. Clause 29(2) of Sch 5 of the Civil and Administrative Tribunal Act2013 (NSW) (NCAT Act) provides that a party to proceedings in NCAT in which a profession decision is made may appeal against the decision to the Supreme Court. In this case the appeal is assigned to the Court of Appeal because the Tribunal as constituted for the hearing of the matter included a Judge of the District Court: Supreme Court Act 1970 (NSW), s 48(1)(a)(vii), (b)(ii), (2)(f). A Judge of the District Court includes an Acting Judge: District Court Act 1973 (NSW), s 18; Gaynor v Burns [2016] NSWCA 44 at [29]-[31].

36. Clause 29(4) distinguishes between an appeal against a decision for the purposes of the Legal Profession Uniform Law (NSW) which is stated to be “an appeal to which section 75A of the Supreme Court Act 1970 applies and, accordingly, is by way of a rehearing, rather than a new (de novo) hearing” (cl 29(4)(a)), and a “non-lawyer appeal” which “may be made as of right on any questions of law, or with the leave of the Court, on any other grounds (cl 29(4)(b)). The appeal by Dr Hampshire falls in the latter category.

37. By cl 29(8), the Court may make such orders as it considers appropriate in light of its decision on the appeal, including but not limited to orders that provide for the decision under appeal to be affirmed or varied, or to be quashed or set aside and another decision substituted for it, or the whole or any part of the case to be reconsidered by the Tribunal at first instance, either with or without further evidence in accordance with the directions of the Court: see generally Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303; [2020] NSWCA 122 at [12]-[14] (Brereton JA).

38. The parties diverged as to the nature of a “non-lawyer” appeal under cl 29(4)(b), and whether s 75A of the Supreme Court Act applies to such appeals, with the consequence that the appeal is by way of rehearing, as Dr Hampshire contends and the Commission disputed. Section 75A applies to “an appeal to the Court” (s 75A(1)), which includes an appeal from a specified tribunal as defined in s 48 of the Supreme Court Act, which includes the Tribunal: see s 48(1)(a)(vii), (b)(ii), (2)(f). However, s 75A “has effect subject to any Act”: s 75A(4).

39. The Commission says that the effect of the NCAT Act is to displace s 75A in the case of a non-lawyer appeal, given the dichotomy drawn in cl 29(4) between lawyer appeals (to which s 75A expressly applies by virtue of cl 29(4)(a)), and non-lawyer appeals (in relation to which cl 29(4)(b) makes no reference to s 75A). The Commission also pointed to the availability of a new hearing under cl 29(7) in the case of a “non-lawyer appeal”, as distinct from a rehearing. That clause provides that in the case of a non-lawyer appeal, the Supreme Court may decide to deal with the appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.

40. The practical significance of whether a non-lawyer appeal is by way of rehearing to which s 75A of the Supreme Court Act applies is that, upon a rehearing under s 75A, the Court may receive further evidence, subject to the conditions in s 75A(7), (8) and (9), and decides the appeal by reference to the facts and law at the time of its determination. Dr Hampshire relies upon s 75A in this appeal to adduce new evidence of matters occurring after the Tribunal’s decision in the form of affidavits from Dr Kwong Kan Tam dated 13 July 2021 and 20 October 2021. This evidence is relied upon as demonstrating Dr Hampshire’s abstinence from alcohol and benzodiazepine use in the period between January and October 2021. The Commission objected to the tender of this new evidence, arguing that this appeal is not by way of rehearing to which s 75A applies, nor has the appeal been extended under cl 29(7) to a new hearing, and that the new evidence is not relevant to matters raised by the grounds of appeal.

41. Counsel for Dr Hampshire indicated that the new evidence is only relied upon in the very limited circumstance that this Court finds error by the Tribunal and determines to deal with the question of protective orders, rather than remit the matter to the Tribunal. It would only be necessary to decide whether the default position for a non-lawyer appeal is a rehearing to which s 75A applies if Dr Hampshire succeeds in demonstrating error by the Tribunal in making the protective orders. As will be seen, the disposition of this appeal does not require the Court to address Dr Tam’s evidence.

Grounds of appeal

42. By his notice of appeal, Dr Hampshire contends that the Tribunal erred in law in determining that he was not competent to practise, in rejecting the opinion evidence of Dr Apel and in failing to give sufficient reasons for rejecting that evidence (grounds 1 and 2), as well as in finding him guilty of professional misconduct (ground 5). He also contends that the Tribunal erred in law in cancelling his registration and ordering a three-year non-review period (grounds 3 and 4).

43. Ground 2 involves a question of law to the extent that it asserts a failure to provide adequate reasons: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 444 (Meagher JA); Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [55].

44. Grounds 3 and 4 involve a question of law insofar as they assert that the exercise of a discretionary power by the Tribunal to cancel the practitioner’s registration and order a three-year non-review period involved an error in the House v The King sense (1936) 55 CLR 499 at 504-505; [1936] HCA 40: see Lee v Health Care Complaints Commission [2012] NSWCA 80 at [19] (Barrett JA, Macfarlan JA and Tobias AJA agreeing).

45. Leave has not been sought under cl 29(4)(b) to extend the appeal to any other grounds which involve either a question of fact, or of mixed fact and law.

Challenge to the finding of professional misconduct: ground 5

46. Dr Hampshire accepted that the Tribunal correctly identified the test of professional misconduct but submitted that the Tribunal failed correctly to apply that test by overlooking countervailing considerations (such as Dr Hampshire’s alcohol use disorder, which it was submitted could be the subject of treatment, his insomnia and consequent benzodiazepine use, and his post traumatic symptoms and depression) when determining whether the conduct the subject of complaints 1 and 2 was of a “sufficiently serious nature” to warrant either suspension or cancellation of his registration, and therefore was professional misconduct under s 139E of the National Law.

The Tribunal’s reasons

47. It is not in dispute that the Tribunal correctly identified the test for professional misconduct in s 139E by reference to the remarks of Basten JA in Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [20]:

There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be “sufficiently serious” to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1).

48. The Tribunal then stated the matters which it took into account as indicators of the serious nature of the conduct for each complaint at [152]-[153]. It is appropriate to reproduce these reasons in full:

Complaint 1

(1)   The escalating sexual undertones in Dr Hampshire’s interactions with patient A starting with his inappropriate ambiguous invitation for her to contact him when he spoke to her in his rooms and continuing through in his conversations and text messages on 14 and 15 April 2017 where he asked what she was wearing, asked her to take off her dressing gown and placed a kiss at the end of two text messages. As Dr Wright said, his persistence and conduct appeared to have a tone of harassment. Dr Hampshire accepted that the texts were very inappropriate. This is a significant boundary violation which went on for some hours.

(2)   Dr Hampshire knew that patient A was vulnerable. This is evident from the report he prepared which he sent to her solicitors. This was conceded by Dr Hampshire who agreed he had formed the view that she was suffering from several, significant psychiatric or psychological disturbances and was extremely vulnerable.

(3)   There was a power imbalance between Dr Hampshire and patient A, arising from the age difference, his superior social position and her dependence on him for her medico-legal report for her damages claim. Dr Hampshire conceded there had been a significant power imbalance in their relationship – she was dependent on him for a medico-legal assessment which would be critical in her claim for damages, he was a psychiatrist and a member of the medical profession so that she would have had a natural feeling of trust towards him, look up to him and perhaps feel intimidated by him.

Complaint 2

(1)   The Tribunal is satisfied that Dr Hampshire has been aware for many years that his health and conduct were affected by his use of alcohol and prescription medication.

It was the evidence of Dr O’Connor that in recent years Dr Hampshire had often said to him that he felt the conditions on his registration were unnecessary or unnecessarily restrictive. He had explained to Dr Hampshire that there were concerns that his capacity to tolerate alcohol and benzodiazepines had been compromised or reduced due to his hypertensive encephalopathy history and his aging brain.

Dr Hampshire conceded that since 2010 he had been aware that one of the reasons for the placing of conditions on his registration was that hypertension, drinking and benzodiazepines could interact in a negative way for his health and work performance.

(2)   The Tribunal is satisfied that Dr Hampshire deliberately withheld information from the regulatory authorities to so they would not know he had contravened the conditions on his registration.

As a consequence of the episodes of confusion in 2009 which were linked to alcohol and Stilnox use (as already noted), a Schedule 1 Inquiry in 2010 imposed conditions limiting Dr Hampshire’s alcohol consumption and requiring him to abstain from sedative medications including benzodiazepines. After that, the regulatory authorities closely monitored Dr Hampshire’s practice to ensure he was complying with the conditions on his registration.

Dr O’Connor said that, over the years he did have concerns about Dr Hampshire using benzodiazepines and other non-benzodiazepine sedative, hypnotic drugs. Dr Hampshire denied such use at every assessment.

Dr Hampshire conceded he deliberately misled Dr O’Connor, and Medical Council review interviews by omitting information about his benzodiazepine use. He also misled them by failing to inform them that, from 2015 to 2017, he had been drinking more than was permitted by the condition on his registration.

(3)   The Tribunal accepts the submission made by counsel for the HCCC that Dr Hampshire’s failure to admit his drinking and benzodiazepine use to the regulatory authorities meant that considerable resources expended in mentoring had been wasted.

(4)   Dr Hampshire has admitted to breaching the conditions for two years.

49. Dr O’Connor was a psychiatrist appointed by the Medical Council to regularly review Dr Hampshire from 2000 to 2003 and again from 2010: at [106].

50. The Tribunal concluded that it was satisfied that Dr Hampshire’s conduct, both individually and together, was of a sufficiently serious nature to justify suspension or cancellation of his registration, and accordingly found Dr Hampshire guilty of professional misconduct under s 139E of the National Law.

Consideration

51. Dr Hampshire’s challenge to the finding of professional misconduct does not raise any question of law. Moreover, the submission that the Tribunal failed to consider relevant evidence should be rejected.

52. Counsel for Dr Hampshire contended that the question of law raised by ground 5 was error in the House v The King sense in that the Tribunal failed to take into account evidence of the effect of Dr Hampshire’s addiction to alcohol on his behaviour in breaching the three conditions of his registration and his behaviour towards patient A. That submission mischaracterised the nature of the Tribunal’s finding of professional misconduct. Whilst that finding involved an evaluative judgement by the Tribunal, it was not a discretionary decision to which error in the House v The King sense would apply to challenge the finding.

53. The circumstances in which an administrative body such as the Tribunal is required to have regard to evidence of central relevance to particulars of a complaint or claim is explained by Meagher JA (Simpson AJA agreeing) in Health Care Complaints Commission v Sultan [2018] NSWCA 303 at [161]-[162]:

[161]   As to the first, the requirement to have regard to relevant considerations was traditionally limited to elements or integers of a claim, as distinct from mere evidence said to establish such allegations of fact: see eg Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396; [2001] FCA 1196 at [79] (Allsop J). In response to perceived difficulties in distinguishing between evidence and integers of a claim, recent authority has favoured extension of that requirement to embrace some “substantial and consequential” evidence: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [69], [111] (Robertson J), citing SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24] (Selway J).

[162]   More specifically, Basten JA in Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9 at [65] (McColl and Simpson JJA agreeing) observed that “to ignore or overlook apparently credible and relevant information, which might support an essential step in the reasoning process if the claim were to be upheld, may itself constitute a constructive failure to exercise the function conferred on the Tribunal” (emphasis added). That proposition has been applied in dismissing an appeal from the Tribunal exercising powers under the National Law: Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [103]–[105], Payne JA (Basten and Leeming JJA agreeing). For present purposes, what matters is that any such requirement to have regard to evidence must derive from an express or implicit prescription in the statute conferring the applicable power or regulating its exercise: Torbey at [67].

54. It was not submitted here that the asserted failure of the Tribunal to have regard to particular evidence was derived from an express or implied requirement in the National Law conferring the applicable power to suspend or cancel the practitioner’s registration or regulating its exercise where the Tribunal is satisfied that the practitioner is guilty of professional misconduct: National Law, s 149C(1)(b).

55. With respect to the seriousness of the boundary violation, counsel for Dr Hampshire submitted that whilst a matter of “some” seriousness, the conduct in relation to patient A did not warrant cancellation for a period of three years, or cancellation per se, and therefore was not professional misconduct. In seeking to downplay the seriousness of this conduct, the submission sought to engage in a merits review of the Tribunal’s findings that the boundary violation was both “significant” and “serious”. That did not raise any question of law.

56. In any event, those findings were not only open but hardly surprising, given the Tribunal’s findings as to: (a) the escalating sexual undertones in Dr Hampshire’s interactions with patient A, (b) Dr Hampshire’s knowledge of patient A’s vulnerability, and (c) the power imbalance between Dr Hampshire and patient A. The Tribunal found that this conduct was directed to a vulnerable and much younger patient, was not fleeting, went on for several hours, it was overtly sexualised and was unwanted, and that Dr Hampshire’s persistence and conduct appeared to have a tone of harassment.

57. Further, and contrary to Dr Hampshire’s submissions, the Tribunal did not fail to consider the evidence attributing Dr Hampshire’s conduct in relation to patient A to his alcohol use disorder. Although not repeated at [152] of its reasons, the Tribunal had earlier recorded Dr Hampshire’s explanation of his conduct, being his excessive ingestion of alcohol and taking one 10mg Temazepam tablet, when finding that it did not accept that Dr Hampshire had no recollection of his conduct in relation to patient A: at [112], [116]. The weight to be given to that explanation in assessing the serious nature of the conduct was a matter for the Tribunal. The Tribunal’s finding that the conduct the subject of the boundary violation warranted the suspension or cancellation of Dr Hampshire’s registration and therefore amounted to professional misconduct was an evaluative judgement well-open to the Tribunal. The challenge to this finding does not raise any question of law.

58. Turning to the breaches of conditions of Dr Hampshire’s registration, in submitting that the Tribunal overlooked countervailing considerations, Dr Hampshire again sought to engage in a merits review of the Tribunal’s determination that the breaches were of a sufficiently serious nature to warrant the suspension or cancellation of his registration. In any event, the Tribunal did not overlook those other considerations.

59. The Tribunal considered the evidence given by Dr O’Connor that he had explained to Dr Hampshire his concerns that Dr Hampshire’s capacity to tolerate alcohol and benzodiazepines had been compromised or reduced, and his concerns about Dr Hampshire using benzodiazepines, which Dr Hampshire denied at every assessment. The Tribunal also considered the concession by Dr Hampshire in his evidence that he deliberately misled Dr O’Connor and the Medical Council review interviewers about his benzodiazepine and alcohol use from 2015 to 2017: at [153].

60. The finding by the Tribunal that Dr Hampshire’s failure to comply with private health conditions 8 and 9 was wilful and persistent behaviour (at [175(5)]), was well-open, given the earlier findings (at [153]) that: (a) Dr Hampshire has been aware for many years that his health and conduct were affected by his use of alcohol and prescription medication, (b) Dr Hampshire deliberately withheld information from the regulatory authorities so they would not know he had contravened the conditions on his registration, (c) Dr Hampshire failed to admit his drinking and benzodiazepine use to the regulatory authorities, and (d) the breaches had occurred over a period of 2 years.

61. The finding by the Tribunal that the breaches of conditions of registration warranted suspension or cancellation of Dr Hampshire’s registration was an evaluative judgement well-open to the Tribunal. Again, no question of law was raised.

62. One further matter should be mentioned. Dr Hampshire’s submission that the Tribunal failed to have regard to relevant evidence in assessing the complaint of professional misconduct ignored the concession made by his counsel before the Tribunal in relation to complaint 3. At the conclusion of the evidence on 22 November 2019, counsel for Dr Hampshire submitted in writing:

Whilst Dr Hampshire formally denies complaint 3, the characterisation of the conduct admitted in complaints 1 and 2 is a matter for the Tribunal. Conduct of that type has historically been regarded as professional misconduct.

63. That submission was confirmed in oral argument on 22 November 2019, when counsel for Dr Hampshire said in relation to complaint 3:

… I’m not putting a submission that the conduct isn’t professional misconduct; I’m not saying that.

64. Nor did Dr Hampshire make any contrary submission in relation to complaint 3, in his supplementary written submissions filed with leave in June 2020, following the written and oral evidence given by Dr Apel in May 2020.

65. Dr Hampshire effectively conceded before the Tribunal that it was open to the Tribunal to make a finding of professional misconduct. That concession was appropriate given the serious nature of the conduct the subject of complaints 1 and 2. The contention in this Court that the Tribunal failed to consider evidence relevant to the assessment of whether Dr Hampshire’s conduct was of sufficient seriousness to amount to professional misconduct seeks to raise a new case on appeal, not run before the Tribunal. Plainly, there is no question of law raised by ground 5.

Not competent to practise medicine and protective orders: grounds 1-4

66. Other than the complaint in ground 2 of insufficient reasons for rejecting Dr Apel’s opinion, it is convenient to deal with grounds 1-4 together as the argument advanced by Dr Hampshire was common to all these grounds.

67. Dr Hampshire submitted that the Tribunal erred in the House v The King sense as a relevant matter which had to be taken into account by the Tribunal, being the effect of his addiction to alcohol on his behaviour in breaching the conditions of his registration, his behaviour towards patient A, his competence to practice and the proper formulation of protective orders, was not taken into account.

Tribunal’s reasons

68. The Tribunal correctly noted (at [161]) that a finding of impairment does not necessarily lead to a finding that a practitioner lacks competence to practise and referred to the distinction between impairment and competence, as discussed by Sackville AJA in Lindsay v Health Care Complaints Commission [2010] NSWCA 194 at [168]-[170].

69. The Tribunal approached the question of competence to practise by reference to the sole particular of complaint 5 ultimately relied upon by the Commission – that Dr Hampshire was impaired by reason of an alcohol use disorder and alcohol dependence: at [79]. In finding that Dr Hampshire was not competent to practise (at [166]), the Tribunal took into account the following matters (at [165]):

(1)   In relation to the likely duration of the impairment, Dr Apel agreed that Dr Hampshire would have to demonstrate abstinence for three years before the condition could be considered to be in remission. Meanwhile the risk of relapse was “omnipresent”. It was, Dr Apel said, too early to assess the likelihood of recovery as Dr Hampshire had been drinking a long time and habits take a while to modify.

The Tribunal agrees with Dr Apel when he said that Dr Hampshire minimises his alcohol intake because he is still in significant denial as to how much alcohol is affecting his life. Dr Apel said that while Dr Hampshire intellectually understands he has multiple alcohol related issues he has not fully digested and accepted that he has a problem which needs to be addressed. The Tribunal is satisfied that this impacts adversely on the likelihood of Dr Hampshire achieving remission in three years.

(2)   The primary mitigating factors proposed by Dr Apel during the lengthy recovery period are monitoring and supervision. As discussed elsewhere in these Reasons, Dr Hampshire has not only failed to comply with conditions in the past but has actively hidden that failure from those appointed to monitor and supervise him. The Tribunal considers that it is likely that this would occur again.

(3)   The condition can grossly impair Dr Hampshire’s judgement and clinical ability, as evidenced by his conduct the subject of Complaint One, Particular 2.

70. Turning to protective orders, the Tribunal recorded the concession by counsel for Dr Hampshire that a finding that Dr Hampshire is not competent to practise would necessarily result in an order that he be deregistered and that the Tribunal had made this finding: at [168]-[169]. The Tribunal went on to consider whether orders sought by the Commission should be made by reasons of its finding of professional misconduct in relation to complaint 3.

71. The Tribunal correctly noted that the finding of professional misconduct did not mean that registration must be suspended or cancelled; rather, the finding could justify suspension or cancellation of Dr Hampshire’s registration. After referring to authority that protective orders are not intended to punish the practitioner but to protect the public (Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630) and to the principles discussed by Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35], the Tribunal took into account the following matters (at [175]):

(1)   Dr Hampshire’s conduct risked the health and safety of the public. His conduct in relation to patient A was a serious boundary violation. It was a breach of the trust that patients have in members of the medical profession. Patient A said she considered his conduct disgusting and she felt violated. She described him as an opportunistic doctor who tried to take advantage of her.

(2)   The Tribunal is satisfied that Dr Hampshire’s conduct, in particular breaching health conditions on his registration for two years while working, diminishes public confidence in the medical profession.

(3)   Dr Hampshire has serious longstanding issues with alcohol and sedatives which have not been adequately addressed despite the regulatory authorities providing support through the conditions placed on his registration.

(4)   Other practitioners are entitled to see the standards of their profession upheld. In addition, a purpose of the protective Orders is to encourage other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so.

72. The Tribunal also took into account Dr Apel’s opinion that the impairment, secondary to his diagnosis of alcohol dependence, could be adequately managed with appropriate monitoring and supervision. Dr Apel stated that “it was likely that Dr Hampshire would now comply with a condition requiring total abstinence because in the past he has never been pushed to do so”; that he believed that Dr Hampshire’s desire to work would motivate him to maintain abstinence; that Dr Hampshire is evolving and “hopefully” will “see the light”; that it was “too bleak to think change was not possible”; and conceded that the likelihood of relapse was “high” which was the reason he had recommended placing conditions on Dr Hampshire's registration: at [175(5)].

73. The Tribunal rejected Dr Apel’s opinion, providing the following reasons for concluding that Dr Hampshire does not currently have the sufficient mental capacity to practise the profession and is accordingly not competent to practise (at [175(5)]):

The Tribunal is satisfied that Dr Hampshire has, for many years, understood that a breach of a condition on his registration could put his ability to work as a medical practitioner at risk. He conceded in cross examination that, on Good Friday 2017, as a consequence of his long history with the regulatory authorities, he understood clearly that the conditions around alcohol and benzodiazepines use were a precondition to being able to continue to practise and notwithstanding that knowledge, he wilfully and persistently still engaged in that behaviour.

There is no reason to conclude that the likelihood of his compliance with conditions at this time is higher than at any other time in the past. The Tribunal has no confidence that Dr Hampshire would adhere to the conditions proposed by him.

74. The Tribunal accepted the Commission’s submission that even in the absence of finding that Dr Hampshire is not currently competent to practise medicine, it would not be appropriate to permit him to practise with conditions and that the protective orders sought by the Commission should be made: at [176].

Consideration

75. Again, contrary to Dr Hampshire’s submissions, the Tribunal’s finding that Dr Hampshire is not competent to practise is not a discretionary decision to which the principles in House v The King apply. No question of law is raised by the challenge to that finding.

76. By contrast, Dr Hampshire’s challenge to the exercise of a discretionary power by the Tribunal to cancel his registration raises a question of law insofar as Dr Hampshire can demonstrate an error of law that would vitiate the exercise of a discretion in accordance with the approach in House v The King at 504-505. In Lee v Health Care Complaints Commission, Barrett JA (Macfarlan JA and Tobias AJA agreeing) said at [19]:

As Basten JA pointed out in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [85], the power of the Tribunal to make a disciplinary order is discretionary in nature. It follows that, once a finding of professional misconduct is made and, if challenged on appeal, withstands the challenge, an appellant can attack an exercise of the disciplinary power only by identifying an error that would vitiate the exercise of discretion. In the present case, the order made is challenged on appeal, but the finding of professional misconduct is not. Counsel on both sides therefore correctly accepted that review by this Court of the Tribunal's exercise of the disciplinary discretion must be in accordance with the approach described by Dixon, Evatt and McTiernan JJ in House v The King … at 504-505.

77. Addressing the nature of the jurisdiction and the purpose of orders made in exercise of it, Barrett JA observed in Lee v Health Care Complaints Commission at [20] that in Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102, Basten JA made several important points at [83]:

1.   The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual.

2.   That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order.

3.   The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist.

78. The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards: Lee v Health Care Complaints Commission at [21]; Health Care Complaints Commission v Litchfield at 637. That is consistent with the objects and guiding principles of the National Law as stated in ss 3 and 3A, which include that in the exercise of functions under a “NSW provision”, the protection of the health and safety of the public must be the paramount consideration. The term “NSW provision” means, relevantly, a provision that forms part of the Health Practitioner Regulation National Law (NSW) because of a modification made by the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW).

79. In Health Care Complaints Commission v Do at [35], Meagher JA said of the exercise of disciplinary powers by the Tribunal:

The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.

Not competent to practise

80. Although Dr Apel expressed the view before the Tribunal that a period of 6 to 12 months of complete sobriety was required before he would consider it appropriate for Dr Hampshire to return to work, he agreed that sustained remission requires a period of three years of total abstinence and that, on the history he had obtained, Dr Hampshire had not demonstrated such a period of sustained abstinence from alcohol. Indeed, Dr Apel accepted that Dr Hampshire told him he had been drinking alcohol in the period leading up to his assessments in January and February 2020. Thus, on the evidence before the Tribunal, Dr Hampshire had not yet commenced a period of abstinence from alcohol.

81. Contrary to Dr Hampshire’s submissions, the Tribunal did not fail to consider the effect of Dr Hampshire’s addiction to alcohol; rather, it was only after considering the effect of his addiction, including the evidence of Dr Apel, that the Tribunal came to the conclusion that the effect of his addiction satisfied the Tribunal that Dr Hampshire is not competent to practise.

82. In forming that evaluative judgement, the Tribunal took into account: that the likely duration of the impairment was three years; Dr Hampshire’s significant denial that alcohol was affecting his life which impacted adversely on the likelihood of him achieving remission in three years; that there was a likelihood that Dr Hampshire would fail to comply with the conditions of monitoring and supervision suggested by Dr Apel as he had previously actively hidden his failure to comply with conditions from those appointed to supervise and monitor him; and that the impairment can grossly impact Dr Hampshire’s judgement and clinical ability, as evidenced by the telephone conversations, text messages and voicemails in relation to patient A: at [165].

80. The finding that Dr Hampshire was not competent to practise because of his impairment consequent upon his alcohol use disorder, was well-open to the Tribunal. No question of law has been identified.

Protective orders

84. Nor did the Tribunal fail to consider the effect of Dr Hampshire’s addiction to alcohol when considering protective orders. As stated above, it was only after considering the effect of his addiction, including the evidence of Dr Apel, that the Tribunal came to the conclusion that Dr Hampshire’s alcohol dependence could not be managed, and that the public could not be sufficiently protected by the conditions suggested on his behalf, without a lengthy period of cancellation of Dr Hampshire’s registration and that he not be permitted to make an application for review for a period of three years.

85. The evidence before the Tribunal was that the conduct in relation to patient A was the result of the consumption of alcohol (six or more standard alcoholic drinks) and one Trazadem tablet by Dr Hampshire in breach of the conditions of his registration on a single day. The Tribunal addressed the risk that similar conduct to that boundary violation could occur at any time during the remission phase of Dr Hampshire’s alcohol dependence, which Dr Apel agreed was three years. The Tribunal found that the risk of relapse was “omni-present”, which can be taken to mean “ever-present”. That description of the risk was open to the Tribunal, as counsel for Dr Hampshire accepted in oral argument.

86. How such risk could be managed, having regard to the paramount consideration of the health and safety of the public (National Law, s 3A), involved an assessment of the effect of the alcohol dependence on Dr Hampshire’s competency to practise. The Tribunal formed the view that “[t]he condition can grossly impair Dr Hampshire’s judgement and clinical ability …”: at [165(3)]. Contrary to Dr Hampshire’s submission, the Tribunal did not address the wrong question, or fail to address the question at all. No question of law has been identified.

87. Nor did the Tribunal fail to appreciate the explanation provided by Dr Apel for Dr Hampshire’s breach of the conditions of his registration and his conduct towards patient A, namely, that the alcohol dependence was the mechanism by which the conduct occurred. The Tribunal focused on the correct question, being the risk to the public of such conduct recurring and the effect of the alcohol dependence on Dr Hampshire’s competency to practise.

88. Contrary to Dr Hampshire’s submissions, it was well-open to the Tribunal to find that his behaviour in breaching private health conditions 8 and 9 was wilful and persistent: see [73] above. That finding went to the risk of the conduct recurring. That did not mean that the Tribunal ignored the effect of his addiction. The point made by the Tribunal when assessing the risk of the conduct recurring, assuming conditions of monitoring and supervision were imposed on his registration, was that Dr Hampshire understood clearly that the (existing) conditions around alcohol and benzodiazepines use were a precondition to him being able to continue to practise and, notwithstanding that knowledge, he still engaged in behaviour in breach of the conditions of his registration.

89. Given the evidence that Dr Hampshire had previously actively hidden his failure to comply with the private health conditions 8 and 9 from those appointed to supervise and monitor him, it was open to the Tribunal to conclude that it could have no confidence that Dr Hampshire would adhere to the conditions proposed by him.

90. Whether the degree of seriousness of conduct was such that there was no appropriate alternative to cancellation of registration was a matter of degree and judgement for the Tribunal: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]. Counsel for Dr Hampshire submitted that there was a “way forward” for the Tribunal which fell short of cancellation for three years where Dr Hampshire could maintain his registration. According to the submission, the protective orders are excessive, and conditions could have been imposed to ameliorate the risk of conduct the subject of the complaints recurring.

91. Before the Tribunal, Dr Hampshire submitted that he was competent to practise subject to conditions being placed on his registration, including drug screening and thrice-weekly urine drug testing. In this Court, Dr Hampshire submitted in writing that the making of other orders was appropriate, namely: a suspension under s 149C of the National Law, a reprimand under s 149A of the National Law, and the imposition of practise conditions including compliance with the Medical Council’s alcohol and drug screening policies and participant procedure. In oral argument, counsel for Dr Hampshire maintained the submission below that Dr Hampshire was competent to practise subject to conditions, whilst also accepting that a period of suspension of 6 to 12 months was appropriate, based on Dr Apel’s evidence that such a period of complete sobriety was required before he would start thinking about a return to work for Dr Hampshire. That submission overlooked two matters. One is that at the time of the hearing before the Tribunal, Dr Hampshire had not yet commenced a period of remission. The other is that Dr Apel accepted that sustained remission requires a period of three years of total abstinence.

92. In my view, Dr Hampshire has not demonstrated that the protective orders made by the Tribunal were legally erroneous. The Tribunal had regard to the relevant evidence, including Dr Apel’s opinion; it was not required to accept his opinion that monitoring and supervision was appropriate. The Tribunal considered the risk of the conduct recurring and it was not satisfied that the proposed conditions of registration addressed the health and safety of the public.

93. As to the three year non-review period, although the Tribunal did not say so expressly, it is implicit in its decision to cancel Dr Hampshire’s registration for a period of three years that the Tribunal considered the same period should apply as the non-review period, given the evidence of Dr Apel that sustained remission requires a period of three years of total abstinence.

Inadequate reasons

94. Dr Hampshire submitted in the alternative that the Tribunal failed to provide sufficient reasons for rejecting Dr Apel’s opinion, specifically, that Dr Hampshire’s impairment – alcohol dependence – could be addressed by imposing conditions on his practice.

95. Under the National Law, the Tribunal must provide a written statement of the decision on an inquiry or an appeal under the Law: s 165M(1). The requirements of the statement of a decision are set out in s 165M(2):

(2) The statement of a decision must—

(a)   set out any findings on material questions of fact; and

(b)   refer to any evidence or other material on which the findings were based; and

(c)   give the reasons for the decision.

96. In Gautam v Health Care Complaints Commission [2021] NSWCA 85, Payne JA said that “[i]n exercising the statutory functions under the National Law, the Tribunal is obliged to provide reasons of sufficient cogency for its conclusions”: at [56]. Payne JA continued at [57] by noting that it is well-established that the function of an appellate court is not to determine the optimal level of detail required in reasons for a decision but rather to determine the minimum acceptable standard. The standard required of reasons is not one of perfection: New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [66] (Bell P (Ward JA agreeing).

97. Leeming JA (Simpson AJA agreeing) rejected a submission by the Commission that a one-size-fits-all test applies when assessing the adequacy of reasons given by any tribunal from which an appeal lies confined to questions of law, such as under cl 29(4)(b), unless leave to appeal is granted on another ground. At [14]-[18], as reproduced in full below, Leeming JA said of the minimum standard of reasons required of the Tribunal:

[14]   I do not accept the HCCC’s one-size-fits-all submission that the test for the adequacy of reasons is that applicable to a tribunal from which an appeal lies confined to questions of law. That is so for a number of reasons. One is that the same standard of reasoning is not applicable to all tribunals, irrespective of constitution or subject matter, from which appeals lie confined to questions of law. Where (as here) the tribunal is required to include a judge amongst its members, and is required to resolve factual disputes of the utmost seriousness to complainants and practitioners, that suggests a heightened standard of reasons in contrast with, say, the decision of the same tribunal, differently constituted, on a dispute under the Home Building Act 1989 (NSW).

[15] A second is that the starting point is the nature of the statutory regime. In the present case, the Tribunal was subject to the express obligations in s 165M of the Health Practitioner Regulation National Law (NSW) (this provision is a modification, contained in Schedule 1 of the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW), of Queensland legislation made applicable by s 4 of the latter statute.) That regime incorporates an important public aspect in s 165M(4), which provides as a default position that the written statement of the decision be made publicly available wherever a complaint has been proved or admitted in whole or in part. That reflects a legislative determination that there should be a transparent process in the case of the most serious complaints.

[16]   A third, which is cognate with the second, is that much may turn upon the significance of the issues determined by the tribunal, both for the parties and for the broader public. In the present case, as Mr Windsor SC, who appeared in this Court but not in the Tribunal, correctly submitted, they were of the utmost seriousness to the practitioner (involving a reprimand and a suspension of his right to practise his profession), to the complainant and to the wider public. The content of the judicial duty to give adequate reasons depends on the circumstances of the matter being considered: Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49 at [61]. The position with tribunals is a fortiori, bearing in mind the range of matters determined by tribunals and the absence of any free-standing common law duty to give reasons: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [43].

[17] The fourth point is that pursuant to s 29(4)(b) of Schedule 5 of the Civil and Administrative Tribunal Act 2013 (NSW), both sides enjoy not merely a right of appeal confined to questions of law, but a right of appeal, subject to leave, on any other ground. It is well recognised that a necessary consequence of the existence and extent of a right of appeal is that it will affect the obligation to give reasons; the latter must at the least extend to sufficient reasons so as to permit the full enjoyment of the former: see Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [23]-[24] and [105] and New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [29]. A dissatisfied litigant in NCAT enjoys substantially the same right of appeal as is enjoyed by a dissatisfied litigant in an action in the District Court involving an amount less than $100,000, namely an appeal on any grounds, subject to the grant of leave.

[18]   Most commonly, the issues in contested proceedings in the Occupational Division will involve questions of fact. Not uncommonly, they will include questions of the credibility and reliability of the evidence of complainants as well as of practitioners. It will, generally speaking, be necessary for the Tribunal to apprehend the gravamen of each side’s case, to attend to the central aspects of those cases, and the evidence bearing upon them, and to give reasons for the critical findings of fact and the evidence upon which they turn. It is difficult to speak in terms of inflexible rules. Very much will turn upon the nature of the case and, in particular, the nature of the parties’ submissions in support of the findings each seeks to be made.

98. In this case, the Tribunal gave adequate reasons for rejecting Dr Apel’s opinion that Dr Hampshire’s impairment – alcohol dependence – could be addressed by imposing conditions on his practice. As indicated, the Tribunal found that Dr Hampshire had not only failed to comply with conditions in the past but had actively hidden that failure from those appointed to monitor and supervise him, and that there was a risk that this would occur again. The Tribunal noted that Dr Apel conceded that the likelihood of relapse was “high” and took into account the caveats and qualifications that Dr Apel had placed on his predictions about Dr Hampshire’s capacity to manage his alcohol use disorder. These have been referred to above at [69]. The Tribunal was not satisfied that the proposed conditions of registration addressed the risk of the conduct recurring: specifically, Dr Hampshire was still in denial as to the effect of his alcohol consumption, he had not yet commenced a period of remission, Dr Apel agreed that sustained remission requires a period of three years of total abstinence, and the Tribunal had no confidence that Dr Hampshire would adhere to the conditions proposed by him.

99. The assertion in ground 2 that the Tribunal’s reasons for rejecting Dr Apel’s evidence are inadequate is not made out.

Conclusion

100. I propose the following orders:

1. Appeal dismissed.

2. Appellant to pay the respondent’s costs.

101. R A HULME J: I agree with Gleeson JA.

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Decision last updated: 19 November 2021