Hocking v Medical Board of Australia
[2015] ACAT 22
•13 March 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
HOCKING v MEDICAL BOARD OF AUSTRALIA
(Occupational Discipline) [2015] ACAT 22
OR 13/11
Catchwords: OCCUPATIONAL DISCIPLINE – health practitioner regulation – orthopaedic surgeon – immediate action to suspend –appellable decision – orders that can be made – action should be limited to that necessary to address identified risk pending investigations – board should consider option of using conditions first –
NATURE OF APPEAL – review on merits considering material before original decision maker and additional evidence bearing directly on the original decision – Kozanoglu decision binding on ACAT
REASONABLE BELIEF – belief must be reasonably founded – for decision to suspend probative value of evidence should be at the higher end of the scale
PROHIBITION OF PUBLICATION – names of patients – names not relevant to proceeding – prohibiting publication of names consistent with legislative schemes – information about private finances of limited relevance – interest of private life requires that the information be kept private
COLLATERAL REVIEW – Tribunal cannot undertake collateral review of decision – decision to accept or reject notification not an appellable decision – nothing in statute gives Tribunal a power to decide the validity of actions underpinning an appellable decision
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 9, 39, 53, 88
Health Records (Privacy and Access) Act 1997 (ACT)
Health Practitioner Regulation National Law (ACT) 2010 ss 3, 35, 19, 151, 155, 156, 199, 202
Health Practitioner Regulation National Law (ACT) Act 2010 ss 6, 7, 8, Sch 1
Health Act 1993
Health Practitioner Regulation National Law Act 2009 (Qld)
Health Practitioner Regulation National Law (WA) Act 2010
Privacy Act 1988 (Cth)
Queensland Civil and Administrative Tribunal Act 2009
State Administrative Tribunal Act 2004
Cases cited:Ali Kozanoglu v The Pharmacy Board of Australia [2012] VSCA 295
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Commissioner for Fair Trading and Felton [2013] ACAT 47
Director of Housing v Sudi [2011] VSCA 266
Gomes v Tasmanian Board of the Medical Board of Australia [2014] TASHPT 3
Hocking v Medical Board of Australia [2014] ACTSC 48
John Morgan and Construction Occupations Registrar [2011] ACAT 18
Kennedy v Administrative Appeals Tribunal (2008) 168 FCR 566
Kim v Minister for Immigration & Citizenship (2008) 167 FCR 578MLNO v Medical Board of Australia [2012] VCAT 123
Pearse v Medical Board of Australia [2013] QCAT 392
Reeve v Aqualast Pty Ltd [2012] FCA 679
V1 and Medical Board of Australia [2011] ACAT 42
Veness v Medical Board of Australia [2011] ACAT 55
Tribunal: Ms L. Crebbin – General President
Date of Orders: 13 March 2015
Date of Reasons for Decision: 13 March 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
OR 13/11
BETWEEN:
RICHARD HOCKING
Applicant
AND:
MEDICAL BOARD OF AUSTRALIA
Respondent
TRIBUNAL: Ms L. Crebbin – General President
DATE: 13 March 2015
ORDER
The Tribunal Orders that:
A decision to impose a condition on the applicant’s registration prohibiting him from treating paediatric patients who have Perthes Disease with platelet rich plasma unless he does so under the supervision of a specialist orthopaedic surgeon approved by the respondent Board is substituted for a decision to suspend his registration.
This decision is an immediate action decision.
………………………………..
Ms L. Crebbin – General President
REASONS FOR DECISION
In these reasons, a reference to the ‘tribunal’ or ‘ACAT’ refers to the ACT Civil and Administrative Tribunal generally and ‘Tribunal’ refers to the current member.
The ACT Board of the Medical Board of Australia (the Board or the respondent) decided on 24 April 2013 to take immediate action to suspend the applicant’s registration as a health practitioner after it considered a notification about the applicant’s treatment of a nine year old patient. The applicant was told about the decision by a letter dated 26 April 2013 sent by the Board’s lawyers to the applicant’s lawyers. The applicant appealed the decision to the tribunal.
The Tribunal reasonably believes that because of the applicant’s conduct in his treatment of this particular patient, the applicant poses a serious risk to paediatric patients and that it is necessary to take immediate action in order to protect public health and safety from that risk by imposing a condition on his registration prohibiting him from treating paediatric patients who have Perthes Disease with platelet rich plasma unless he does so under the supervision of a specialist paediatric orthopaedic surgeon approved by the Medical Board of Australia.
The Tribunal does not believe that suspension of registration is the appropriate necessary immediate action in the circumstances of this case and substitutes a decision to impose the condition referred to in paragraph 3, for the decision to suspend the applicant’s registration. The Tribunal notes there is a Supreme Court order staying the appealed decision and that the parties will need to consider whether any steps should be taken to give effect to this decision.
The applicant is a registered health practitioner and practises as an orthopaedic surgeon. The Board has considered several notifications or complaints about him and has made other decisions, including decisions to impose conditions on his registration and to refer the applicant to the tribunal for disciplinary orders[1]. This case only concerns the Board’s decision to take immediate action to suspend the applicant’s registration as a result of his treatment of a nine year old patient referred to as patient ‘A’.
[1] The history of various notifications is set out in the decision of Chief Justice Murrell in Hocking v Medical Board of Australia & Anor [2014] ACTSC 48
A has a condition known as Perthes Disease. On 8 April 2013, the applicant injected platelet rich plasma, derived from A’s blood, into his hip joint under general anaesthetic. The treatment was the subject of a notification received by the Board on about 18 April 2013 (the Notification). The Notification and treatment are described in further detail below.
Hearings were held about the application on 6 and 15 May 2013, 5 and 6 June 2013 and 16, 17 and 25 September 2013.
The law relevant to the questions to be considered by the Tribunal
The National Scheme applying in the ACT
The decision appealed by the applicant was made under section 156(1) of the Health Practitioner Regulation National Law (ACT) 2010 (the National Law). This is a law that establishes a national registration scheme for health professionals with an objective, amongst others, to protect the public by ensuring that only ‘health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered’ to practise.[2] National Boards are set up for various health professions to ‘register and, if necessary, to impose conditions on the registration of persons in the (associated) profession.’[3] The National Law is adopted in all states and territories although the law is not identical in each place because each jurisdiction has made modifications to it.
[2] s 3(2)(a), National Law
[3] s 35(1)(a), National Law
The National Law applies as a law of the ACT because of section 6 of the Health Practitioner Regulation National Law (ACT) Act 2010 (the adoption Act). Section 8 of the adoption Act declares the ACAT to be the ‘responsible tribunal’ for the ACT for the purposes of the National Law. Section 7 defines a small number of generic terms used in the National Law for the purposes of its use in the ACT and Schedule 1 provides for a number of modifications to the National Law in its application in the ACT. The definitions and modifications do not concern the tribunal’s role as a responsible tribunal. Section 9 of the adoption Act specifies a number of ACT laws that do not apply to the National Law including, the Legislation Act 2001. The National Law contains its own interpretation provisions in Schedule 7.
Notifiable Conduct and Immediate Action
Part 8 of the National Law sets out a framework for receiving and dealing with notifications about the conduct of a registered health practitioner. Section 140 defines notifiable conduct.
On receipt of a notification a Board must conduct a preliminary assessment within 60 days[4] and may decide to take various actions, including to take no further action.[5]
[4] s 149, National Law
[5] s 151, National Law
Division 7 of Part 8 provides for ‘immediate action’. Section 155 defines immediate action to mean suspending or imposing a condition on registration, accepting an undertaking or accepting the surrender of a registration. Section 156 empowers a National Board to take immediate action in relation to a registered health practitioner in specified circumstances. The circumstances that are relevant in this case are:
(1) A National Board may take immediate action in relation to a registered health practitioner ...if—
(a) the National Board reasonably believes that—
(i)because of the registered health practitioner’s conduct, performance or health, the practitioner poses a serious risk to persons; and
(ii)it is necessary to take immediate action to protect public health or safety...
The criteria are different from those relevant to a tribunal’s consideration of a referral of a matter relating to the practitioner’s professional performance or conduct. Immediate action is intended to provide an immediate response to an identified risk for the purpose of safeguarding public health or safety pending further investigation of a notification and where appropriate, referral to a tribunal for consideration of action to address performance, conduct or impairment more generally. In this case, there has been an investigation of the matters raised in the Notification and a referral to the tribunal which is set down for hearing in coming weeks.
Appeals
Section 199 of the National Law provides a right to appeal to the responsible tribunal against certain decisions. Although it is only section 199(1)(h) which is relevant in this matter, the section is set out in full so that the types of decisions that can be appealed to the tribunal are evident. The section provides:
199Appellable decisions
(1)A person who is the subject of any of the following decisions (an appellable decision) may appeal against the decision to the appropriate responsible tribunal for the appellable decision—
(a)a decision by a National Board to refuse to register the person;
(b)a decision by a National Board to refuse to endorse the person’s registration;
(c)a decision by a National Board to refuse to renew the person’s registration;
(d)a decision by a National Board to refuse to renew the endorsement of the person’s registration;
(e)a decision by a National Board to impose or change a condition on a person’s registration or the endorsement of the person’s registration, other than—
(i)a condition relating to the person’s qualification for general registration in the health profession; and
(ii)a condition imposed by section 112 (3) (a);
(f)a decision by a National Board to refuse to change or remove a condition imposed on the person’s registration or the endorsement of the person’s registration;
(g)a decision by a National Board to refuse to change or revoke an undertaking given by the person to the Board;
(h)a decision by a National Board to suspend the person’s registration;
(i)a decision by a panel to impose a condition on the person’s registration;
(j)a decision by a health panel to suspend the person’s registration;
(k)a decision by a performance and professional standards panel to reprimand the person.
It is worth noting that the decision to take immediate action is not an appellable decision. The appellable decision is the decision made on an immediate basis, in this case, the suspension of the applicant’s registration.
Decisions that can be made after an appeal
Section 202(1) of the National Law provides that after hearing an appeal the responsible tribunal may confirm or amend the appellable decision, or may substitute another decision for the appellable decision. If substituting another decision, section 202(2) provides that the responsible tribunal has the same powers as the original decision-maker.
Section 202 does not specify that a tribunal can set aside a decision but such a power must be implied as part of the power to substitute another decision if the right to appeal is to have meaningful operation. A reading of section 159(2) of the National Law supports this conclusion. It provides that a decision to take immediate action continues to have effect until ‘the decision is set aside on appeal’. Where the decision to suspend or impose a condition was made as a result of the consideration of a notification, the appropriate order may be to substitute a decision to take no further action in respect of the notification pursuant to section 151 of the National Law, rather than to set aside the decision.
The question of what decision should be made if a responsible tribunal is satisfied that the criteria for taking immediate action are met, has been considered by other responsible tribunals. In Pearse v Medical Board of Australia (Pearse), QCAT agreed with a submission made by the respondent Board that:
...any conditions imposed ought address the relevant risk specifically, and otherwise be the least onerous possible.[6]
[6] [2013] QCAT 392 at [18]
In MLNO v Medical Board of Australia[7], cited with approval in Pearse, the tribunal said:
While the protection of the public is and must remain the paramount consideration, the impact of immediate action on a health practitioner cannot be underestimated.
[7] [2012] VCAT 123 at [5]
Because the taking of immediate action involves the identification of specific risks and both suspension and the imposition of conditions can have a significant adverse impact on a practitioner, the approach identified in Pearse is appropriate. Without compromising public health or safety, the action taken should be limited to that which is necessary to address the identified risk pending investigation and where relevant, further action - nothing broader or more onerous.
It follows that a decision to suspend – the most onerous of the decisions that may be made – should be made only where the serious risk is so significant or broad ranging, that nothing short of suspension can protect public health and safety; in other words, that suspension is necessary. In my view, a Board considering suspension as an immediate action should ensure that the option of using conditions to protect public health or safety has been considered and found to be inadequate for that purpose.
Nature of an appeal under the National Law
The nature of the appeal provided for by section 199 has been considered in most jurisdictions. In a decision of Ali Kozanoglu v The Pharmacy Board of Australia (Kozanoglu)[8] the Victorian Court of Appeal accepted that an appeal was a ‘review on the merits’ but considered whether there were any limits on the process of review once the matter was before the responsible tribunal.[9]
[8] [2012] VSCA 295
[9] Ibid at [35]
The Court analysed decisions in other jurisdictions and concluded at [119] that:
The appeal to a responsible tribunal under the National law is neither an appeal in the strict sense, nor a rehearing de novo. It is rather a hybrid, whereby the material to be considered is confined to that placed before the original decision-maker, but with the opportunity available to both parties to present additional evidence which bears directly upon that decision as originally taken. It is not ‘open slather’, but nor is it an appeal confined to error.
The Victorian adoption Act for the National Law is, in relevant parts, the same as the ACT adoption Act. Neither Act says anything about the nature of an appeal. The National Law is also, in relevant parts, the same in both Victoria and the ACT, including the Schedule 7 provisions relating to the interpretation of the National Law.
By way of contrast, the Health Practitioner Regulation National Law (WA) Act 2010 specifically provides in section 11 that a reference to an appeal against a decision in the National Law is a reference to a review of the decision as provided under the State Administrative Tribunal Act 2004. Likewise, the relevant Queensland law[10] specifically provides in section 9 that an appeal is a review of a decision as provided under the Queensland Civil and Administrative Tribunal Act 2009. Section 20(2) of the QCAT Act provides that the Tribunal is required to hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.
[10] Health Practitioner Regulation National Law Act 2009 (Qld)
The Victorian Court of Appeal is a superior court and although it is not an ACT Court, in my view, the decision in Kozanoglu should be regarded as binding the ACAT given that the law being considered is in essence, the same law.
The approach in Kozanoglu has been adopted by the Tasmanian Health Practitioners Tribunal[11] and was referred to as a relevant authority by Chief Justice Murrell in proceedings related to this matter in the Supreme Court. She said:
[Kozanoglu is] authority for the proposition that in exercising its jurisdiction, the ACAT is to take into account the material that was before Board when it made its decision and any additional evidence that bears directly upon the position as it was when the original decision was made[12].
[11] Gomes v Tasmanian Board of the Medical Board of Australia [2014] TASHPT 3
[12] Hocking v Medical Board of Australia [2014] ACTSC 48 at [121]
In some cases it will make little difference if an appeal is dealt with in accordance with the Kozanoglu approach, or is regarded as a fresh hearing on the merits. But in other cases, the different approaches will lead to differences in the nature and extent of evidence considered by the responsible tribunal and this in turn may lead to inconsistent outcomes for similar matters. In Western Australia and Queensland at least, the responsible tribunal may consider evidence about matters that have arisen since the immediate action decision was taken. That may make a significant difference to the outcome. Pearse is an example of such a case. This is undesirable in what was intended to be a national scheme and deserves attention by the relevant Ministerial council.
I indicated to the parties that I considered ACAT bound by Kozanoglu at an interlocutory hearing on 15 May 2013.[13] This influenced the material filed by the parties for consideration at the hearing.
[13] T 15/5 p. 107 l-43
The nature of the Tribunal’s power to conduct a review of a decision and limits on that power are further considered at [54] to [59].
Reasonable Belief
There has been some consideration of what is required for the formation of a ‘reasonable belief’ in decisions made under the National Law. In MLNO v Medical Board of Australia[14], a VCAT panel said:
Definitive findings of guilt or innocence do not need to be established. The primary focus is the protection of the public. Nevertheless, the belief must be reasonably founded. It must be based on more than innuendo and suspicion.
[14] [2012] VCAT 1613 at [4]
Written submissions filed on behalf of the respondent at the conclusion of the hearing referred to decisions of courts about provisions that allowed for the exercise of a power on the basis of a reasonable belief[15], including the decision of the Federal Court in Reeve v Aqualast Pty Ltd[16] in which the Court endorsed statements of principle set out in earlier decisions relating to procedural steps under the Federal Court Rules. Although the context is quite different, I accept that the approach is apposite here. The Court noted that the test of reasonable belief is an objective test and said:
While the notion of reasonable belief may set the threshold “at quite a low level”, there must be some tangible support that takes the existence of the alleged right beyond mere “belief” or “assertion”[17]
[15] Respondent’s submissions paragraph 8
[16] [2012] FCA 679
[17] [2012] FCA 679 at [65]
The respondent’s submissions described the requirement that a reasonable belief be formed before action is taken as setting a low threshold.[18] That is certainly the case compared to the level of certainty required to make a decision beyond reasonable doubt, or on the balance of probabilities. It is, as the respondent says, consistent with a legislative scheme providing for preliminary assessment, immediate protective action, further investigation and where appropriate, referral for orders in the nature of disciplinary orders. However, the Tribunal accepts the applicant’s submission that for a decision to suspend, the probative value of the evidence relied on should be at the high end of the scale.[19]
Hearing and orders made on 6 May 2013
[18] Respondent’s submissions paragraph 8
[19] Applicant’s submissions paragraph 1.8
The application was filed on 3 May 2013 together with other applications asking the Tribunal to make an interim order staying the suspension of the applicant’s registration and to make orders prohibiting the publication of some of the information given to the Tribunal.
Ms Nomchong SC represented the applicant at a hearing on 6 May 2013 and Mr Archer of Counsel represented the respondent.
Orders Prohibiting Publication
Material filed by the parties contain names of a number of people who were patients of the applicant. There was also a document annexed to an affidavit affirmed by the applicant on 3 May 2013 that contained personal information about the applicant. Ms Nomchong asked the Tribunal to make orders under section 39 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) prohibiting the publication of the names and the information. The respondent did not oppose the request.
The Tribunal was satisfied that the names of the patients should be kept private, because the interest of the private lives of the patients required the privacy. This is a competing interest that outweighs the right to a public hearing. In this case, the personal health information of the patients is relevant to the consideration of the substantive application, but their names are not – keeping their names private does not derogate from the principles of open justice and is consistent with legislative schemes that recognise that personal health records and information should have special privacy protections.[20]
[20] For example, Health Records (Privacy and Access) Act 1997 (ACT); Privacy Act 1988 (Cth)
After considering the document containing personal information about the applicant, the Tribunal was satisfied that the interests of the private life of the applicant also required that that information be kept private. It was information about his personal financial situation that had limited relevance to the Tribunal’s consideration of an application for an order staying the Board’s decision and no relevance to the substantive application. Prohibiting publication of it did not, in the Tribunal’s opinion, derogate from the principles of open justice.
Final orders were made using the power given to the tribunal in section 39(2) of the ACAT Act as follows:
1.The publication of: (i) evidence given at any hearing of this application; or (ii) matters contained in documents filed with the Tribunal; or (iii) matters received in evidence by the Tribunal; that may identify any patient of the applicant is prohibited.
2.The publication of matters contained in the document that is at Exhibit RH-1, Tab 52 is prohibited.
3.Disclosure of the document and matters contained in the document that is at Exhibit RH-1, Tab 52 is restricted to the parties, their legal representatives and any other person with the leave of the tribunal.
Interim Stay Order
The applicant applied for an interim order staying the respondent’s decision to suspend his registration, subject to a condition that he not perform elective paediatric surgery. Ms Nomchong submitted that the proposed broad condition would address any concern about public safety[21].
[21] Transcript (T) 6/5, p15l. 33-36
Mr Archer opposed the application for any stay and submitted that if the Tribunal was nevertheless minded to make a stay, it be on condition of a ‘blanket prohibition on paediatric surgery’ and any procedure involving the penetration of the skin or the administering of anaesthetic to children.[22]
[22] T 6/5 p17 l. 10-20
The tribunal’s power to make an interim order staying a decision is contained in section 53 of the ACAT Act.
Before an order can be made, the tribunal has to be satisfied that the party who wants the order would be disadvantaged or suffer harm if an order was not made. If the ‘threshold’ requirement is met, section 53(2) gives the tribunal discretion to both make an order and to determine the terms of the order. In earlier cases, the tribunal has accepted that where the order to be made is in the nature of a stay, the exercise of the discretion should be guided by the common law jurisprudence relating to the power of courts to grant interim or temporary stays. In John Morgan and Construction Occupations Registrar [2011] ACAT 18 the Tribunal said:
12.In a regulatory context, the jurisprudence can be summarised by reference to four factors, namely:
(i) whether the material before the tribunal indicates that there is a serious issue to be tried on the substantive application;
(ii) whether any prejudice would be suffered by any party if a stay was not granted;
(iii) whether public safety or the public interest would be imperilled if a stay is granted; and
(iv) whether the substantive application would be pointless or rendered nugatory if the stay is not granted.13. The last three factors can be characterised as related to a broader consideration of the balance of convenience.[23]
[23] See also V1 and Medical Board of Australia [2011] ACAT 42, Veness v Medical Board of Australia [2011] ACAT 55 and Commissioner for Fair Trading and Felton [2013] ACAT 47
Mr Archer appropriately conceded that the applicant would not be able to practice medicine if a stay order was not made and to that extent, would suffer harm. So much was self-evident. This allowed the Tribunal to consider making an order. It was also self evident that there was a serious issue to be tried on the substantive application.
On the basis of the evidence available at that time, which included untested affidavit evidence, oral evidence of the applicant about the work that he was scheduled to do, evidence of other restrictions already in place limiting the work that the applicant could do and some limited evidence about whether there was a potential public safety risk arising from the treatment the subject of the notification, the Tribunal was satisfied that an interim order should be made as sought by the applicant. The order provided:
Until further order, the decision of the respondent made on 26 April 2013 to suspend the registration of the applicant, is stayed on condition that during the period in which this stay is in force, the applicant not perform any elective paediatric surgery.
I clarified, at the request of Mr Archer, that in my view, procedures involving the administration of anaesthetic or the piercing of skin should be considered ‘surgery’ for the purpose of the order but there was no evidence available to me about whether the medical profession would have a similar view.
At the time that the order was made, section 53 of the ACAT Act allowed an interim order to be made for a limited period. The Tribunal’s order, which was due to expire towards the end of July 2013, was overtaken by an order made on 19 July 2013 by the Supreme Court on the application of the applicant with the agreement of the respondent[24]. The order stayed the suspension of the applicant’s registration subject to a condition that he not perform any elective paediatric surgery; that is, surgery on a person under 16 years of age, and a condition that he not undertake any platelet rich plasma treatment on any paediatric patient. This Supreme Court order remains in place until further order. The Tribunal of course, has no power to set it aside or vary it. That is a matter for the parties and the Court.
Hearing and orders made on 15 May 2013
[24] T 16/9 p. 6 l. 24 -31
At the request of the applicant, a subpoena was issued to the Proper Officer of the Clinical Privileges Committee at the Canberra Hospital seeking the production of an un-redacted version of the Notification. The applicant wanted the document for the purpose of identifying the complainant[25]. The name of the author of the document was, along with other information, blacked out on the copy of the Notification sent by the Board to the applicant.
[25] T 15/5 p. 48, l. 5 -12
The subpoena required the document to be produced to the Tribunal on 15 May 2013. Mr Erskine SC appeared for the ACT Health Directorate on that day and applied to set aside the subpoena on the basis that production of the un-redacted version of the Notification was prohibited under the Health Act 1993. He was accompanied by Dr Robert Griffin, the administrator of the Clinical Privileges Committee.
Ms Nomchong SC appeared for the applicant and Mr Archer for the respondent. After considering Mr Erskine’s submissions, Ms Nomchong withdrew the application to have the subpoena answered but asked that Dr Griffin be called to give evidence. Mr Archer opposed the application.
After hearing from all counsel, the Tribunal allowed Ms Nomchong’s application. Dr Griffin was not compelled to give evidence, but agreed to do so. Mr Erskine remained so that he could object to any questions that might contravene provisions of the Health Act 1993.
Mr Erskine helpfully offered to call Dr Griffin as a witness so that Ms Nomchong could cross-examine him. Dr Griffin deposed that he had received the original of the Notification in his capacity as administrator of the Clinical Privileges Committee. He copied it, blacked out some of the content of the copy including the name of the patient and the author of the letter because of concerns about legislative provisions protecting the identity of a complainant, and sent the redacted copy to AHPRA. As a result, the Board only held a redacted copy of the Notification even though the Clinical Privileges Committee at the Canberra Hospital has the original with the name and position of the author of the letter He gave evidence that he had discussed the document with various people before sending it.
At the conclusion of Dr Griffin’s evidence an order was made formally setting aside the subpoena. Fresh directions were made for the filing of material by the parties and setting hearing dates.
Hearing on 5 and 6 June 2013
The hearing of the substantive application commenced on 5 June 2013 but did not continue as a result of the circumstances set out below. Ms Nomchong SC appeared for the applicant and Ms Eastman SC for the respondent.
Ms Nomchong opened with an application to have ‘the proceedings struck out on a jurisdictional basis’[26] (the preliminary application), submitting that I should set aside the decision made by the Board because it was not validly made.
[26] T 5/6 p. 47 l-2
In summary, Ms Nomchong argued that the Notification was not valid or lawfully made as a notification and that the Board should have rejected it. The Board’s decision, made on the basis of an unlawful notification and on short notice to the applicant, was consequently invalid. She submitted that the Tribunal should set the decision aside because there was no lawful decision that could or should be reviewed on its merits. This was not an argument about whether the decision was valid on its face. That was not in issue.
Her argument flowed from the evidence given by Dr Griffin on 15 May 2013 about his sending of the redacted letter addressed to the Clinical Privileges Committee to AHPRA.
The respondent had no notice of the preliminary application and the Tribunal adjourned after hearing Ms Nomchong’s submissions to give the Board an opportunity to consider and respond to it.
When the hearing resumed on 6 June 2013, Ms Eastman advanced three reasons for the Tribunal to reject the preliminary application. The Tribunal adjourned and gave an oral decision later in the day. The Tribunal concluded that the preliminary application should be dismissed, adopting the first of Ms Eastman’s reasons.
What the preliminary application sought was a review of the validity of the decision by means of a review of the validity or lawfulness of actions preliminary to the decision, rather than a review of the decision itself. There was no question of the decision being invalid on its face.
A line of authorities commencing with Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd[27] establishes that a tribunal empowered to review an administrative decision cannot undertake a collateral review of the decision.
[27] (1979) 24 ALR 307 See also Kennedy v Administrative Appeals Tribunal (2008) 168 FCR 566 at [22]
Gyles J expressed the issue succinctly in Kim v Minister for Immigration & Citizenship[28]:
The sole function of the Tribunal is to provide a review on the merits of the relevant decision, not to decide collateral questions of the lawfulness or validity of the decision being reviewed...
[28] (2008) 167 FCR 578 at [39], see also Tamberlin J at [21]
The question was also considered by the Victorian Court of Appeal in Director of Housing v Sudi[29] where Chief Justice Warren emphasised that the extent of a tribunal’s power to inquire into the validity of a decision is a question of construction of the relevant statutory provisions.
[29] [2011] VSCA 266 at [30]-[32], see also Maxwell P at [66]
This tribunal is established by statute[30] and can determine only those applications that an authorising law provides can be made to it.[31] The National Law is the authorising law for this matter. The regime established under the National Law following the receipt of a notification by a board provides for two types of application to be made to a responsible tribunal. One, a referral for action relating to concerns about performance, conduct, or impairment, is not currently relevant. The second type of application is an appeal against the decisions identified in section 199(1) of the National Law. Decisions to accept or reject a notification, are not identified in section 199 as decisions that can be appealed.
[30] s88, ACAT Act
[31] s 9, ACAT Act
The use of the word ‘appeal’ in the National Law rather than ‘review’ does not change the fundamental nature of the exercise to be undertaken by the responsible tribunal. The exercise is one of administrative review of the appellable decision - in this case a decision made by the Board to suspend the applicant’s registration. It is, as established in Kozanoglu,[32]a specie of merits review and not an appeal in the strict sense, considering whether an error has been made.
[32] [2012] VSCA 295 at 119
There is nothing in the National Law, or in the ACAT Act, that evinces an intention to give the tribunal a power to scrutinise and decide on the validity of actions underpinning an appellable decision, or to scrutinise and decide on the validity of an appellable decision made on the basis of an invalid preliminary action. Different considerations might apply if the appellable decision was invalid on its face, but that is not the case here[33].
[33] See the consideration of this by Weinberg JA in Sudi at [231]-[264]
The preliminary application was dismissed because the Tribunal does not have the power to conduct the review sought by the applicant. After a brief adjournment Ms Nomchong advised that an application would be made to the Supreme Court in relation to the matters raised in the preliminary application and other matters. She asked that the application before the Tribunal be stood over pending the Supreme Court application. The Tribunal adjourned the matter and subsequently made orders for the hearing of the application to proceed in September.
The Supreme Court heard an application lodged by the applicant over six days in November 2013. Its decision was delivered in March 2014 and is reported as Hocking v Medical Board of Australia and Anor [2014] ACTSC 48. The application sought a number of remedies which, if granted, would have made the Tribunal’s hearing and decision ineffective. The application was dismissed by the Supreme Court. After the Court’s reasons for decision were published, the Tribunal wrote to the parties to inviting them to make submissions about the decision. They declined to do so.
Hearing 16, 17 and 25 September 2014
What are the questions to be determined in this hearing?
Taking into account the legislative framework described above, the questions to be determined by the Tribunal are:
(i)What did the applicant do? What was the relevant conduct?
(ii)Having regard to the evidence before the Board when it made its decision and further evidence before the Tribunal that can be said to bear directly on the decision, does the Tribunal reasonably believe that because of the conduct:
(a) the applicant poses a serious risk to persons? and
(b) is it necessary to take immediate action to protect public health or safety?
(iii)If yes to (a) and (b), what is the risk?
(iv)If yes to (a) and (b) what immediate action is required to provide protection.
It is necessary to consider what evidence can be taken into account to answer these questions.
Consideration of the Evidence
Eight witnesses gave oral evidence:
(a)the applicant;
(b)Patient A’s mother;
(c)Shane Logan, the Director of Notifications of AHPRA;
(d)Dr Michael Gillespie, an orthopaedic surgeon who agreed to be a supervisor and trainee for the applicant in 2012 and who provided the Board with a report about the applicant’s surgical practice in so far as it relates to adult hip surgery. The report was dated 24 January 2013.
(e)Dr David Young, an orthopaedic surgeon from Melbourne specialising in sports medicine and arthritis surgery of the lower limbs;
(f)Dr Jit Balakumar, an orthopaedic surgeon from Melbourne specialising in hip surgery;
(g)Professor Omer Mei-Dan, an orthopaedic surgeon from the USA who provided an expert opinion for these proceedings at the request of the applicant;
(h)Professor David Little, a paediatric orthopaedic surgeon from Sydney who provided an expert opinion for these proceedings at the request of the respondent.
A number of documents were marked as exhibits. The tribunal is not bound by the rules of evidence in these proceedings and the concept of accepting evidence as admissible and marking documents does not strictly apply. However, it is a convenient mechanism for identifying material before the Tribunal. The fact that documents have been marked and are referred to as exhibits in these reasons is not to be taken as an indication that their admissibility has been formally considered. There were some errors in the markings as is evident below.
A1 the Notification dated 17 April 2013;
A2 Affidavit of Richard Hocking affirmed 3 May 2013;
A3Affidavit of Richard Hocking affirmed 11 September 2013;
A4Statement of Dr Omer Mei–Dan dated 25 May 2013;
A5Bundle of Documents relating to Dr Young
A6Reports of Dr Michael Gillespie dated 24 January 2013 and 13 May 2013 together with his CV;
A7Email from Richard Hocking of 17 September 2012 and screenshot of booking diary;
A8Affidavit of Mark Treffers sworn 3 May 2013;
A9Affidavit of Jeremy Johnson sworn 24 May 2013;
A10Pages 76 to 95 of the Transcript of Proceedings before ACAT on 15 May 2013;
A11Printout from the Australian and New Zealand Clinical Trials Registry for trial titled Prevention of Inflammation in Perthes Disease using Steroid Injections dated 18 March 2013;
A12Abstracts from 72nd Annual Scientific Meeting of the Australian Orthopaedic Association 2012;
A13Affidavit of L, Patient A’s mother, affirmed 24 May 2013;
A14AHPRA Guidelines for Mandatory Notification;
A15AHPRA Fact Sheet;
R1emails between Jitendra Balakumar and Richard Hocking dated 23 and 24 April 2013
R2 documents produced in response to a subpoena issued to Epworth Healthcare;
R3Affidavit of Jitendra Balakumar affirmed 23 July 2013;
R4 Report of Professor David Little dated 12 May 2013;
R5Canberra Hospital Progress Notes for Patient A dated 17 February 2012;
R6 Radiology report for Patient A dated 13 April 2012;
R6Minutes of Meeting of the Board dated 16 April 2013;
R7Request for Admission for Patient A dated 13 September 2011;
R8Progress Notes for Patient A dated 11 November 2011;
R9Radiology report dated 4 July 2011;
R10Progress Notes for Patient A dated 17 February 2012;
R11Radiology report dated 13 April 2012;
Ex 5Affidavit of Shane Logan affirmed on 6 May 2013.
The material before the Tribunal was considerably more extensive than the material the Board had when it made its decision on 24 April 2013. Mostly, the evidence does directly bear on the Board’s decision. It can be characterised as being about what was before the Board, or as expanding on or elucidating the material before the Board.
Some of the evidence went beyond that required for the questions to be determined by the Tribunal. This included evidence elicited on behalf of the applicant directed to his concern that the Board has treated him unfairly and demonstrated bias towards him and evidence elicited by the respondent more relevant to the Board’s concern about the applicant’s professional performance, and evidence that just emerged, as it is want to do as the story of a matter unfolds during a hearing, more relevant to those and other things.
While I accepted all the evidence that was put before me, evidence relating to the applicant’s concerns about bias and unfair treatment is not relevant in the context of the exercise that the tribunal must undertake. It has not been taken into account. Evidence that is only relevant to the referral matter has also been disregarded.
What was the evidence before the original decision-maker?
It is clear that the Board had been considering and acting on notifications about the applicant’s conduct for two years before it considered the Notification in this matter.[34] The Board met to review a number of conditions imposed and undertakings given in relation to some types of adult and paediatric surgery, supervision, mentoring and re-training just two days before it received the Notification. The Minutes of the meeting of 16 April 2013 were provided and marked as the second document ‘R6’. The Minutes and the affidavit of Mr Logan (Ex 5) show that there had been detailed scrutiny by the Board of the applicant’s professional performance in a range of areas over some time and that various conditions and undertakings had and continued to limit his practice. On 16 April 2013 the Board decided to vary some of the conditions but had not given effect to that decision when it received the Notification. It had earlier decided to revoke other conditions[35]. There were other notifications that had been received but not considered as at that date.[36]
[34] The history of notifications and actions is summarised in Hocking v Medical Board of Australia [2014] ACTSC 48 at [7] and set out in detail in Ex 5, Affidavit of Shane Logan
[35] Ex 5 para 53
[36] Ex 5 para 54-55
The Notification was received on 17 or 18 April 2013. It commenced ‘Dear Sir or Madam’ but these words had been struck through and the name “Robert” written by hand in their place. The Notification read:
I wish to make a formal notification to the Canberra Hospital Clinical Review Committee and also the Clinical Privileges Committee regarding Dr Richard Hocking and his recent treatment of a child. I expect the Canberra Hospital Administration to notify this case to the relevant authorities ie the ACT Medical Board/AHPRA.
The patient in question is a 9 yr old [redacted]
This patient has left hip Perthes Disease, a condition where there is avascular necrosis of the bone of the proximal femoral epiphysis.
On 8-4-13, Dr Hocking performed injection of Platelet Rich Plasma under general anaesthesia at Canberra Hospital into the patients left hip joint.
This treatment is entirely without precedent. There is no report in the peer reviewed scientific literature regarding this treatment. There is no evidence to support this treatment in experimental models. There is no scientific validation at all for this treatment.
This case represents unwarranted therapeutic experimentation on a child, placing the child at the risk of a general anaesthetic, and at the risk of introduction of infection into the joint. All this without any evidence for efficacy or safety.
I believe that this case demonstrates disregard for patient safety, disregard for evidence based therapeutic measures and a standard of practice well outside that of a trained Orthopaedic Surgeon.
Yours
Signature redacted
Two lines redacted
A committee to which the Board had presumably delegated some functions, met on 19 April to consider the Notification. Mr Logan’s affidavit refers to this as a meeting of the Board itself[37] but the Minutes of the Meeting, provided as tab 26 to his affidavit is headed to show that the meeting was of the “ACT Immediate Action Committee of the Medical Board of Australia”. The Minutes do not expressly note what evidence was ‘placed before’ the Committee, but refer to the Notification, “the practitioner notification history summary” and to the Chair of the Committee, Dr McKenzie, advising the Committee that “a basic literature review and research did not support the use of platelet rich plasma in the treatment of Perthes disease”.
[37] Ex 5, para 63
The content of the Notification itself has no probative value because the identity of the author and his or her qualifications or expertise is not revealed, at least to the Board and to this Tribunal. While the content suggests the author has expertise or specialist knowledge in the field of orthopaedics, in addition to knowledge about the condition of and treatment of patient A, that is simply unknown. The Committee could not have regarded the Notification as anything other than a series of assertions which taken by themselves, would not be sufficient to establish the requisite reasonable belief.
The practitioner notification history summary that is referred to in the Minutes is not amongst the documents before the Tribunal. It is not clear what the summary was and what information it contained.[38]The material before the Tribunal does not include any further detail about the literature looked at by Dr McKenzie or the research that had been undertaken. There is no statement or affidavit from Dr McKenzie and in any event, it is not clear that he was the person who undertook the review or research about which he advised the Committee.
[38] Mr Logan was questioned at length about the information about previous and current notifications and actions before the Board
The Minutes include reference to:
(a)the applicant practising subject to conditions which were subject to ongoing action when the procedure was carried out (although it was accepted that the procedure did not contravene the conditions);
(b)conditions imposed to that time not resulting in a reduction in concerns about his practice;
(c)whether the ‘recent events complained of indicate an underlying pattern of behaviour that ‘prima facie’ might go to the question of the applicant’s competence and judgment;
(d)the Board’s expression on previous occasions that it could not be satisfied that the applicant had sound decision making capabilities or the capacity to assess risk.
A letter headed “Dr Richard Hocking – Notice of Proposed Action” was sent to the applicant’s lawyer on 22 April 2013 to tell the Applicant about the Notification and the Committee’s consideration of it.[39] A copy of the Notification was attached to the letter but not the Minutes of the 19 April meeting.
[39] Ex 5, Tab 27
The letter refers to the Board as having met rather than to a committee of the Board. It said that the Board had considered the content of the Notification, the applicant’s “notification summary” and that it had also been unable to identify any precedent for the procedure used in juveniles with Perthes Disease. While the Notification was attached to the letter, the notification summary referred to in the letter was not. The letter said that in particular the Board noted:
(a) The conduct of undertaking this procedure was assessed by the Board in the context of serious reports which have, in recent times, led to the suspension and, at other times, a restriction being placed on Dr Hocking’s right to practice. The most recent proceeding regarding these restrictions is still unresolved;
(b) The undertaking of this unproven medical procedure was assessed by the Board in the context of the existence of restrictions on Dr Hocking’s capacity to undertake paediatric surgery; and
(c) Given the above circumstances, the Board held a concern about Dr Hocking’s decision-making, professional judgment and assessment of risk.
It is clear from a reading of both the Minutes of the meeting on 19 April and the letter of 22 April that the Committee considered the Notification in the context of the Board’s dealings with the applicant in the previous two years and that that was an important consideration for it in deciding to take immediate action. The particular notifications, reports, actions, restrictions and proceedings that were in documents before the Committee members, or in their minds, were not identified. In his oral evidence Mr Logan agreed that the reference to a previous suspension “in recent times” in paragraph (a) of the letter sent to the applicant after the meeting was wrong[40]. There was no previous suspension. It is unclear whether this incorrect reference reflects inaccurate information before the Committee.
[40] T 25/9 p 264 l. 6-20
The Board met on 24 April 2013 to hear oral submissions about the proposed action from the applicant, his lawyer Mr Treffers and a Dr McNichol. The meeting is described in Mr Logan’s Affidavit (Ex 5) at paragraph 66, and in the applicant’s affidavit (A2), and in the affidavit of Mr Treffers (A8).
Mr Treffers deposes that at the meeting the Board had before it the Notification, the evidence of the applicant, himself and Dr McNichol and no other evidence. A number of documents were provided to the Board by Mr Treffers including two articles and correspondence, reports and notes about the treatment of Patient A.
In his affidavit Mr Logan says that at the meeting, the Board considered the submissions and the Notification before it.[41] He doesn’t refer to the Board having considered any notification history or its own research. In oral evidence, he confirmed that the meeting was not recorded but that comprehensive minutes were available. The minutes were not produced. None of the reports of the meeting indicate who the Board members were and so I am unable to tell whether they were the same members who formed the Committee on 19 April (who had seen the notification summary) or whether additional or different members attended.
[41] Ex 5, para 67
The decision of the Board was communicated by letter dated 26 April 2013 sent to the applicant’s lawyers.[42] It is a detailed letter that summarises the submissions made on behalf of the applicant, identifies the documents provided by Mr Treffers on behalf of the applicant and sets out the Board’s decision as follows:
On 24 April 2013 the Board considered the submissions put by Dr Hocking and on his behalf, as well as the notification before it and formed the view that:
1) Because of Dr Hocking’s performance, he poses a serious risk to persons; and
2) It is necessary to take immediate action to protect public safety.
As a consequence, the Board decided to suspend Dr Hocking’s registration.
[42] Ex A2, Tab 3 and Ex 5, Tab 28
The reasons for the decision are identified in paragraphs labelled (a) to (r). With some limited exceptions, the reasons specifically relate to the treatment of A. Paragraphs (j) and (k) refer to existing restrictions on the applicant’s “right to practice” and the assessment of A’s treatment in the context of “the existence of restrictions on Dr Hocking’s capacity to undertake paediatric surgery”. These paragraphs are similar to paragraphs (a) and (b) set out at paragraph 82 above. The inaccurate reference to an earlier suspension is not repeated.
Paragraph (l) is a different version of (c) above. It says:
(l) Dr Hocking’s treatment of the young patient raised serious concerns about Dr Hocking’s general decision-making, professional judgment and assessment of risk.
Paragraph (p) notes:
...that Dr Hocking was under conditions at the time of this procedure and was prevented from performing an osteotomy which is one of the conventional forms of treatment of this condition. It was not apparent to the Board at this stage whether this restriction on his practice was discussed with the parents of the child or whether the unproven nature of the procedure was drawn to their attention. That issue will be addressed as the matter is further investigated and was not a matter relied upon to reach the decision to suspend Dr Hocking from practice.
These are the only references to previous notifications and actions. The only matter identified with any particularity is the imposition of a condition preventing the applicant performing an osteotomy. Although not mentioned as having being considered by the Board at the 24th April meeting, information about the history of notifications, reports, actions, and conditions clearly was in the minds of the members who participated in the decision-making that day, if not in the documents before them.
Mr Logan was questioned by Ms Nomchong in an attempt to identify what information about what notifications and actions was available to the members on 19 April 2013. There was this exchange:
So, are you saying that the board took into account the imposition of conditions 7 to 12?---No, the board took into account the notification and the circumstances around the notification that had already led to outcomes or decisions.
Okay. Well, one of the outcomes of decisions was the imposition of conditions 7 to 12, isn’t that correct?---That is correct.
Right. So the board took into account the notifications that led to the imposition of conditions 7 to 12, that’s correct, isn’t it?---That is correct.
Thank you. Now, you have told Madam President that items placed on an agenda are available to be uploaded. Can you tell us, as at 19 April 2013, were there any other notifications concerning Dr Hocking on the agenda board available for board members to look at?---On 19 April the board meet to consider the notification that is the subject of this hearing in regards to the PRP injections.
I understand that. The question I am asking...is...was there a pre-existing agenda that contained any notifications concerning Dr Hocking that were open and available for board members to look at?---No.
The material before the Tribunal includes documents and oral evidence relating to the earlier notifications but it is not clear what was ‘before’, or was considered by, the members present at the meetings on 19 and 24 April 2013. Given the history of the Board’s dealings with the applicant, including as recently as 16 April 2013, it would be surprising if the members were not thinking about earlier matters, but what matters they were and in what context they were thought to be related to the current matter involves speculation.
The respondent submitted that the significance of those historical matters:
...lies in the fact that whilst some of them have not been resolved that in the context of immediate action they cannot be ignored. This Tribunal is not required to make decisions about prior notifications that have been made. Rather it should deal with the immediate action decision it is required to consider taking into account action that has been taken to place restrictions on Dr Hocking’s practice and to improve his clinical decision-making capacities.
I accept the respondent’s proposition that the fact that there were earlier notifications and actions cannot be ignored. It clearly provides some context to the appellable decision. I also accept that I am only dealing here with the appellable decision. I am not satisfied that I can find that earlier actions were taken to improve the applicant’s clinical decision-making capacity without evidence about that; that may have been one of a number of reasons for restrictions.
In the absence of some evidence about the particular notifications or actions considered by the Board on 19 and 24 April, the most that I can consider is, in my view, that there were earlier actions and restrictions.
I am satisfied that the only evidence the Tribunal can consider as evidence that was before the Board is the bare fact that there were earlier notifications and actions, the Notification, (which has no probative value), and the applicant’s submissions to the Board. The Tribunal must of course also consider evidence that bears directly on the Board’s decision.
What did the Applicant Do?
The applicant affirmed two affidavits (A2 and A3) and gave oral evidence.
To understand the evidence about what he did, it is necessary to know a little about Perthes disease and about the use of platelet rich plasma, or PRP. What follows summarises evidence given by the medical witnesses, and in particular by Professor Little, about these things and I make findings in accordance with this summary.
The applicant and other professional witnesses described Perthes disease as a disorder of the hip found in children. Professor Little described it as commonly seen in paediatric practice.[43] Other witness said it was less common. Its cause is unknown. It can progress through various stages. The femoral head may become deformed. Symptoms are stiffness, pain and inflammation. There is no cure. Treatment is focussed on minimising the risk of deformity of the femoral head and managing or reducing symptoms. Professor Little described the aim of treatment as being to achieve “the most spherical joint and best hip mechanics possible to preserve hip function if adult life.” It is a complex disease and treatment decisions are complex. There is no universal agreement about treatment but a range of treatments have been used including observation, restricting activity and reducing movement including by using a wheelchair, splints or casts, use of oral medications to reduce pain (analgesics and anti-inflammatory agents), surgery and injections of cortico-steroids.
[43] T 17/9 p. 221 l. 25
Platelet rich plasma (PRP) is produced using a patient’s own blood. The blood is extracted and then separated using a centrifugal process which results in platelets concentrating in plasma. The concentrate of platelets is drawn off and then injected into the area of the patient that is under treatment.
The applicant first saw Patient A in May 2011 in relation to left hip pain. A was then seven years old. The applicant said that he had treated A’s sister for Perthes disease since 2008. His treatment of A over the period from May 2011 to May 2013 is set out in detail in the affidavit marked A2. In summary, he recounts a regime involving assessment and treatment using X-rays, observation and review, recommendations about reducing high impact actions and use of analgesics, arthrograms and injections of steroid under general anaesthetic on two occasions, the use of a cast to be worn at night, discussion of A’s condition and treatment with surgeons in Melbourne, discussions with A’s mother including about the possibility of the use of PRP, development of a treatment plan, a third arthogram and steroid injection under general anaesthetic, further observation and monitoring, obtaining an MRI scan and then on 8 April 2013, the injection of PRP into the left hip joint under general anaesthetic.
The evidence that is challenged relates to the extent to which the applicant discussed A’s condition and treatment with surgeons in Melbourne and the extent of his discussions with A’s mother. This is referred to in greater detail below. Otherwise the applicant’s description of A’s treatment is accepted. It is verified and supported by x-ray and various other reports and letters to general practitioners and patient progress notes.
Fifteen letters written by the applicant to Patient A’s general practitioner between May 2011 and April 2013 reporting on examinations, treatment and potential future treatment, are annexed to affidavit A2 at tab 4. Under cross-examination, the applicant said that his treatment plans for A were set out in these letters.[44] There was no separate specific written plan for treatment. There was also some questioning about whether the dates recorded for consultations in the affidavit were accurate or taken from the date of these letters, written usually some days after the consultation. If there were inaccuracies in dates, I am not satisfied that they were of material significance in the context of the exercise required for this hearing.
[44] T 16/9 p. 23-25
A decision is made to impose a condition on the applicant’s registration prohibiting him from treating paediatric patients who have Perthes Disease with platelet rich plasma, unless he does so under the supervision of a specialist orthopaedic surgeon approved by the respondent Board.
………………………………..
Ms L. Crebbin – General President
HEARING DETAILS
FILE NUMBER: | OR 13/11 |
PARTIES, APPLICANT: | Richard Hocking |
PARTIES, RESPONDENT: | Medical Board of Australia |
COUNSEL APPEARING, APPLICANT | Ms Nomchong SC |
COUNSEL APPEARING, RESPONDENT | Ms Eastman SC |
SOLICITORS FOR APPLICANT | Minter Ellison |
SOLICITORS FOR RESPONDENT | ACT Government Solicitor |
TRIBUNAL MEMBERS: | Ms L. Crebbin, General President |
DATES OF HEARING: | 16, 17 and 25 September 2013 |
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