Health Care Complaints Commission v Robinson [2022] NSWCA 164
Hearing dates:
3 May 2022
Date of orders:
26 August 2022
Decision date:
26 August 2022
Before:
Leeming JA at [1]; Kirk JA at [24]; Simpson AJA at [40].
Decision:
1. Appeal allowed.
2. The whole of the Application for Disciplinary Findings and Orders filed by the Health Care Complaints Commission on 9 April 2020 be reconsidered by the Tribunal in accordance with these reasons.
3. The respondent is to pay the appellant’s costs of the appeal.
Catchwords:
OCCUPATIONS — Heath practitioners — Misconduct and discipline — Disciplinary proceedings — ophthalmologist conducted breast and abdominal examination in circumstances where examination not indicated — application by Health Care Complaints Commission to NSW Civil and Administrative Tribunal seeking finding of professional misconduct —Tribunal found only unsatisfactory professional conduct — whether Tribunal erred in equating inappropriate conduct of a sexual nature with conduct that is sexually motivated — two-stage procedure for determination of disciplinary complaints — meaning of “interlocutory decision” in Civil and Administrative Tribunal Act 2013 (NSW)
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Health Care Complaints Commission v Robinson [2022] NSWCA 164
Case
[2022] NSWCA 164
Decision Date
CaseChat Overview and Summary
The Health Care Complaints Commission (HCCC) appealed to the New South Wales Court of Appeal against a decision of the Civil and Administrative Tribunal (NCAT). The dispute concerned an ophthalmologist who conducted breast and abdominal examinations on a patient in circumstances where such examinations were not clinically indicated. The HCCC sought a finding of professional misconduct, but the Tribunal found only unsatisfactory professional conduct.
The central legal issue before the Court of Appeal was whether the Tribunal erred in law by equating inappropriate conduct of a sexual nature with conduct that is sexually motivated. The Court also considered the meaning of an "interlocutory decision" within the context of the *Civil and Administrative Tribunal Act 2013* (NSW) and the two-stage procedure for determining disciplinary complaints.
The Court of Appeal held that the Tribunal had erred in its approach. It reasoned that while conduct might be inappropriate and of a sexual nature, it does not automatically follow that it is sexually motivated. The Tribunal's failure to properly distinguish between these concepts constituted an error of law. The Court allowed the appeal, setting aside the Tribunal's decision and remitting the matter for reconsideration. The respondent was ordered to pay the appellant's costs of the appeal.
Orders
Orders of the court
1. Appeal allowed.
2. The whole of the Application for Disciplinary Findings and Orders filed by the Health Care Complaints Commission on 9 April 2020 be reconsidered by the Tribunal in accordance with these reasons.
3. The respondent is to pay the appellant’s costs of the appeal.