Kirby v Health Care Complaints Commission

[2021] NSWCA 138

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Kirby v Health Care Complaints Commission [2021] NSWCA 138

Hearing dates:

01 June 2021

Date of orders:

09 July 2021

Decision date:

09 July 2021

Before:

Gleeson JA at [1];
White JA at [2];
Emmett AJA at [62]

Decision:

(1) Grant leave to appeal in respect of grounds 1 to 4 of the draft notice of appeal;

(2) Direct that a notice of appeal in accordance with the grant of leave be filed within seven days; and

(3) Order that the appeal be dismissed with costs.

Catchwords:

ADMINISTRATIVE LAW – Particular administrative bodies – Health Care Complaints Commission – Health Care Complaints Act 1993 (NSW) – Registered health practitioner – Whether the Commission failed to consult the appropriate professional council under s 39(2) before making a prohibition order under s 41A – Where the complaint against the health practitioner concerned conduct outside the field of his registration – Whether failure to consult the appropriate professional council rendered the prohibition order invalid.

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Director of Public Prosecutions Act 1986 (NSW)

Health Care Complaints Act 1993 (NSW)

Health Practitioner Regulation National Law 2009 (NSW)

Public Health Act 2010 (NSW)

Public Health Regulation 2012 (NSW)

Supreme Court Act 1970 (NSW)

Therapeutic Goods Act 1989 (Cth)

Cases Cited:

Hossain v Minister for Immigration and Border Protection & Anor (2018) 264 CLR 123; [2018] HCA 34

Kirby v Health Care t/as Health Care Complaints Commission [2020] NSWSC 1133

Martincevic v Commonwealth (2007) 164 FCR 45

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40

Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610; [2015] HCA 22

Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40

Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627; [2009] HCA 37

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17

Plaintiff M61/2010E v The Commonwealth (Offshore Processing Case) (2010) 243 CLR 319; [2010] HCA 41

Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 92 ALJR 248; 351 ALR 225

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24

Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54

Category:

Principal judgment

Parties:

David William Kirby (Appellant)
Health Care Complaints Commission (Respondent)

Representation:

Counsel:
J Sheller SC with D Tang (Appellant)
P Lowson (Respondent)

Solicitors:
Graham Billing & Co (Appellant)
Health Care Complaints Commission (Defendant)

File Number(s):

2020/255744

 Decision under appeal 

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Common Law

Citation:

[2020] NSWSC 1133

Date of Decision:

26 August 2020

Before:

Harrison AsJ

File Number(s):

2019/101278

HEADNOTE

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

The applicant, Dr Kirby, is a dentist. On 6 August 2015, the respondent, the Health Care Complaints Commission, received a complaint from another dentist to the effect that the applicant had administered a substance called "cansema" to a woman as a means of treating a cancer of the nose. Cansema is not approved by the Therapeutic Goods Administration. The respondent referred the matter to the Dental Council, which then caused an inspection of the applicant's practice to be conducted, the results of which suggested that the applicant had administered cansema to other people on other occasions.

The applicant submitted to the Council that because the conduct the subject of the complaint occurred outside the practice of dentistry, the Council did not have power under the Health Practitioner Regulation National Law 2009 (NSW) (‘National Law’) to deal with it. The Council referred the matter to the respondent.

In February 2016, the respondent used its own motion powers pursuant to s 8(2) of the Health Care Complaints Act 1993 (NSW) ('the HCC Act') to initiate a complaint against the applicant in respect of his use of cansema or cansema-like substances. The respondent proceeded to investigate the complaint under Div 6 of the HCC Act.

On 4 October 2016, the respondent made a prohibition order under s 41A(2)(a) of the HCC Act prohibiting the applicant "from applying or administering black salve, red salve, cansema or cansema-like substances to any person".

On 1 April 2019, the applicant filed a summons seeking a declaration that the decision of 4 October 2016 was void, an order preventing the HCCC taking any further steps in relation to the making of a prohibition order, and, in the alternative, an order quashing the decision of 4 October 2016.

The applicant contended that the respondent failed to comply with what he says is a precondition to the making of a prohibition order, being the requirement in s 39B of the HCC Act that "[t]he Commission must consult with the appropriate professional council before deciding what action to take."

The respondent admitted that it did not consult with a professional council before making the prohibition order. It contended, however, that there was no appropriate professional council because the complaint concerned an alleged breach of the "Code of Conduct for non-registered Health Practitioners", which applies both to unregistered health practitioners and to registered health practitioners who provide health services unrelated to their registration. That is, because the alleged breach did not concern dentistry, the Dental Council was not an appropriate council. The primary judge accepted this submission.

At issue on appeal was whether the primary judge erred in finding that there was no appropriate professional council, and, if so, whether the respondent's failure to consult the appropriate professional council rendered the prohibition order invalid.

The Court held (per White JA, Gleeson JA agreeing and Emmett AJA agreeing in the result):

In respect of whether there was an appropriate medical council for the purposes of s 39B(2) of the HCC Act:

Per White JA (Gleeson JA agreeing at [1]):

Because the Dental Council, which originally referred the matter to the respondent, may have considered that a result more or less serious than a prohibition order was warranted, it was an appropriate medical council: at [30]-[31].

Per Emmett AJA:

The reference in s 39B(2) to "the appropriate professional council (if any)" indicates that the legislature contemplated that there may not be an appropriate professional council. In circumstances where the conduct in question was not conduct in Dr Kirby's capacity as a registered health practitioner, there was no appropriate professional council: at [82].

In respect of whether the respondent's failure to consult rendered the prohibition order invalid:

Per White JA (Gleeson JA agreeing at [1] and Emmett AJA agreeing at [81]):

Given that the opinion of the Dental Council was that the applicant posed a risk to the safety of the public, and given that the Dental Council did not respond to the notice given by the respondent after making the prohibition order, there is no reason to think that the Dental Council would have opposed the action proposed: at [56]-[59].

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17, applied.

JUDGMENT

1. GLEESON JA: I agree with White JA.

2. WHITE JA: This is an application for leave to appeal from orders of the Common Law Division (Harrison AsJ) dismissing the applicant’s amended summons that sought a declaration that a decision of the respondent dated 4 October 2016 was void and of no effect (Kirby v Health Care t/as Health Care Complaints Commission [2020] NSWSC 1133).

3. The application for leave to appeal was heard concurrently with the appeal if leave were given. The respondent, the Health Care Complaints Commission (“the HCCC” or “the Commission”) opposed the grant of leave but the application raised important questions concerning the required procedures under Division 6 and Division 6A of the Health Care Complaints Act 1993 (NSW) (“the HCC Act”) where the complaint being investigated is that a registered health practitioner has acted inappropriately in providing health services outside the profession for which he or she is registered. The first four of the proposed grounds for appeal are directed to that question.

4. The applicant did not press grounds 5 and 6 of its draft notice of appeal. I would grant leave to appeal on grounds 1 to 4.

5. In the reasons which follow I refer to the applicant as the appellant.

6. The appellant, Dr Kirby, is a dentist practising in Orange. As noted above, by his summons filed in the Common Law Division, he sought a declaration that a decision of the HCCC dated 4 October 2016 was void and of no effect. The summons was filed on 1 April 2019 and amended on 11 April 2019. It was further amended on 13 August 2019.

7. The HCCC’s decision was to make a prohibition order under s 41A(2)(a) of the HCC Act as follows:

“Dr David Kirby is permanently prohibited from applying or administering black salve, red salve, cansema or cansema-like substances to any person, whether at his dental practice premises or elsewhere.”

8. The HCCC also decided to cause a public statement to be issued under s 41A(2)(b). It also decided, pursuant to s 41B(3)(b) of the HCC Act, that it would cause a copy of its finalised Statement of Decision to be provided to the Australian Health Practitioner Regulation Agency and each professional council in New South Wales. It stated that it would only make the prohibition order and its Statement of Decision publicly available under s 41B(3)(c) of the HCC Act following the conclusion of appeal proceedings and delivery of a judgment by the NSW Civil and Administrative Tribunal (“NCAT”).

9. On 3 November 2016 the appellant filed an application with NCAT for administrative review of the decision. Section 41C of the HCC Act provides that a health practitioner may apply to NCAT for an administrative review under the Administrative Decisions Review Act 1997 (NSW) of a decision under s 41A to make a prohibition order in respect of a health practitioner or a decision to issue a public statement about the health practitioner (s 41C(1)(b) and (c)). The primary judge recorded that the hearing of that application was stayed pending the outcome of related proceedings before the Tribunal and subsequent Supreme Court proceedings between the Dental Council of NSW and the appellant (J [35]). Her Honour recorded that the application was set down for hearing on 25 and 26 March 2019 but the Commission submitted to the Tribunal on 25 March 2019 that any question concerning the satisfaction of the statutory basis of the making of an order under s 41A could only be dealt with by an application for judicial review in the Supreme Court. The basis for that submission is not immediately apparent. Nonetheless, the Tribunal adjourned the application in order that the appellant could bring his application in the Supreme Court to challenge whether the statutory preconditions to the making of a s 41A prohibition order were satisfied (J [36]-[38]).

10. It was for these reasons that the summons was not filed until 1 April 2019. The summons seeks a declaration that the HCCC’s decision dated 4 October 2016 is void and of no effect. It also seeks an order preventing the HCCC taking any further steps in relation to the making of a prohibition order in respect of the appellant concerning events before October 2016. It seeks in the alternative an order quashing the “decision” of the HCCC dated 4 October 2016. It does not seek an order in the nature of certiorari quashing the prohibition order.

11. The proceedings were judicial review proceedings, being proceedings under s 65 of the Supreme Court Act 1970 (NSW) or otherwise in the supervisory jurisdiction of the Supreme Court. Rule 59.10 of the Uniform Civil Procedure Rules required such proceedings to be commenced within three months of the date of the decision. The primary judge extended that period. The respondent does not contend that the primary judge erred in granting the extension.

12. In its statement of reasons for the decision, the HCCC provided the following background:

“1. The Complaint

1.1   On 6 August 2015 the Health Care Complaints Commission received a complaint from dentist, Dr A, alleging that a patient of his, Ms B, had informed him that she had a basal cell carcinoma (BCC) of the nose and had been seeing Dr David Kirby, dentist, for treatment. Ms B told Dr A that the treatment involved the administration of a substance called ‘cansema’, which is not approved by the Therapeutic Goods Administration.

1.2   In his response to the Commission, of 19 August 2015, Dr Kirby denied that Ms B was ever a patient of his, and further he denied ever providing such treatment. The Commission referred the matter to the Dental Council for management and on 6 November 2015, the Council determined to authorise a person to conduct an inspection of Dr Kirby’s dental practice premises, which was duly carried out by Dr C on 27 November 2015.

1.3 As well as other matters relating to Dr Kirby’s practice as a dentist, Dr C reported back to the Council that one of the patient records inspected had contained a number of entries referring to ‘cansema’ which warranted further investigation. In view of reports that Dr Kirby’s practice may present a risk to public safety, the Council determined to hold urgent proceedings under section 150 of the Health Practitioner Regulation National Law (the National Law), which commenced on 11 December 2015. As a result of those proceedings, Dr Kirby was suspended from the practice of dentistry with effect from 18 December 2015, however his suspension was lifted by the Council and conditions imposed on 17 February 2016 following review proceedings.

1.4 Relevantly to this matter, Dr Kirby’s legal representatives submitted to the Council delegates that the conduct referred to in Dr A’s complaint concerning cansema was not undertaken by Dr Kirby in his capacity as a dental practitioner and that Ms B, the patient referred to in the complaint, was not Dr Kirby’s patient. It was submitted that as the conduct the subject of the complaint occurred outside the practice of dentistry, the Council did not have power under the National Law to deal with it. At the conclusion of the proceedings, the Council referred the matter to the Commission for investigation.

1.5    On February 2016, the Commission determined to initiate an ‘own motion’ complaint against Dr Kirby in his capacity as a non-registered health practitioner in relation to his alleged treatment of patients with ‘cansema’ or ‘cansema-like’ substances.

2. Issues

2.1   The Commission investigated the following issues:

• Whether Dr Kirby was engaged in the provision of a health service when he administered cansema, or a cansema-like substance, in liquid or paste form to the skin of a number of people with actual or suspected skin cancer lesions, on a number of occasions at his dental practice belwe0t1 2009 and 2015;

• Whether Dr Kirby breached the Code of Conduct for non-registered Health Practitioners ('the Code of Conduct') by treating or purporting to treat skin cancer via the administration of a substance not authorised for use by the Therapeutic Goods Administration to Ms 8, Mr G and at least 12 other persons;

• Whether Dr Kirby poses a risk to the health or safety of members of the public…”

13. The HCCC described in detail its investigations and Dr Kirby’s responses to the Commission’s complaint that he had applied cansema or cansema-like substances to people’s skin and provided advice in ways that amounted to a breach of the Code of Conduct for non-registered Health Practitioners set out in Sch 3 to the Public Health Regulation 2012.

14. Section 100 of the Public Health Act 2010 (NSW) provides that regulations may prescribe codes of conduct for the provision of health services by health practitioners who are not registered health practitioners (including de-registered health practitioners) and for registered health practitioners who provide health services that are unrelated to their registration (s 100(1)(a) and (b)). The Code of Conduct prescribed by Sch 3 to the Public Health Regulation 2012 applies to both health practitioners who are not registered health practitioners and to registered health practitioners within the meaning of the Health Practitioner Regulation National Law (NSW) (“the National Law”) who provide health services that are unrelated to their registration (cl 2). In its reasons for decision, the HCCC identified the following clauses of the Code of Conduct as being relevant:

“3 Health practitioners to provide services in safe and ethical manner

(1) A health practitioner must provide health services in a safe and ethical manner.

(2) Without limiting subclause (1), health practitioners must comply with the following principles—

…

(b) a health practitioner must not provide health care of a type that is outside his or her experience or training,

(c) a health practitioner must not provide services that he or she is not qualified to provide,

…

(f) a health practitioner must recognise the limitations of the treatment he or she can provide and refer clients to other competent health practitioners in appropriate circumstances

…

5 Health practitioners not to make claims to cure certain serious illnesses

(1) A health practitioner must not hold himself or herself out as qualified, able or willing to cure cancer or other terminal illnesses.

…

11 Health practitioners required to have clinical basis for treatments

A health practitioner must not diagnose or treat an illness or condition without an adequate clinical basis.

…

15 Health practitioners to keep appropriate records

A health practitioner must maintain accurate, legible and contemporaneous clinical records for each client consultation.”

15. It is unnecessary to set out the details of the HCCC’s findings for its conclusion that the appellant had breached the Code of Conduct and that his conduct posed a risk to the health and safety of members of the public. The present challenge is to the legality not to the merits of the HCCC’s decision.

16. Section 41A of the HCC Act sets out the grounds upon which the Commission may make a prohibition order prohibiting the health practitioner from providing specified health services, or may make a public statement identifying and giving warnings or information about the health practitioner and health services provided by him or her. Section 41A provides:

41A Prohibition orders and public statements

(1) The Commission may take action under this section if—

(a) it has complied with Division 6 with respect to an investigation of a complaint against a health practitioner, and

(b) it finds that the health practitioner has breached a code of conduct for non-registered health practitioners or has been convicted of a relevant offence, and

(c) it is of the opinion that the health practitioner poses a risk to the health or safety of members of the public.

(2) The action that the Commission may take under this section is either or both of the following—

(a) make a prohibition order that does any one or more of the following—

(i) prohibits the health practitioner from providing health services or specified health services for the period specified in the order or permanently,

(ii) places such conditions as the Commission thinks appropriate on the provision of health services or specified health services by the health practitioner for the period specified in the order or permanently,

Note—

Section 102 (3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order.

(b) cause a public statement to be issued in a manner determined by the Commission identifying and giving warnings or information about the health practitioner and health services provided by the health practitioner.

(3) If the Commission is aware that a person in respect of whom it is proposing to make a prohibition order is a registered health practitioner, the Commission is, before making the prohibition order, to notify the relevant professional council of the proposed order and give that council an opportunity to make a submission.

…

(5) In this section—

code of conduct for non-registered health practitioners means a code of conduct prescribed by regulations under section 100(1)(a) or (b) of the Public Health Act 2010.

17. The appellant contends that the Commission is not entitled to take the proposed action because it has not complied with Division 6 with respect to its investigation of the complaint against the appellant (s 41A(1)(a)). Section 39 which is contained in Division 6 of Part 2 provides:

39 What action is taken after an investigation?

(1) At the end of the investigation of a complaint against a health practitioner, the Commission must do one or more of the following—

(a) refer the complaint to the Director of Proceedings,

(b) (Repealed)

(c) refer the complaint to the appropriate professional council (if any) for consideration of the taking of action under the Health Practitioner Regulation National Law (NSW), such as the referral of the health practitioner for performance assessment or impairment assessment,

(d) make comments to the health practitioner on the matter the subject of the complaint,

(e) terminate the matter,

(f) refer the matter the subject of the complaint to the Director of Public Prosecutions,

(g) take action under section 41A.

...

(2) The Commission must consult with the appropriate professional council before deciding what action to take.”

18. It is common ground that the Commission did not consult with any professional council before deciding what action to take (s 39(2); J [106]). The HCCC submitted, and the primary judge held, that because the Commission was investigating its own complaint that the health practitioner had breached the Code of Conduct for non-registered Health Practitioners, there was no appropriate professional council with whom to consult.

19. The Code of Conduct as published by the HCCC, but not as prescribed, is headed “Code of Conduct for non-registered Health Practitioners”. But the code applies both to unregistered health practitioners and to registered health practitioners who provide health services that are unrelated to their registration (Public Health Act s 100(1)(b)).

20. The primary judge accepted the submission of the HCCC that s 39(2) did not apply to the investigation into the appellant because there was no “appropriate professional council” within the meaning of s 39(2) relevant to the conduct in which the appellant engaged outside his practice as a dentist. The primary judge said (J [134]-[137]):

“[134] One of the requirements for the making of a prohibition order under s 41A of the Health Care Complaints Act is that the Commission find under s 41A(1)(b) that the health practitioner breached a code of conduct for non-registered health practitioners. In this code of conduct, contained in Sch 3 to the Public Health Regulations (Ex A, 232), ‘health practitioner’ and ‘health service’ have the same meanings as in the Health Care Complaints Act. Despite the name, the so-called ‘code of conduct for non-registered health practitioners’ states that it applies to registered health practitioners. It also applies to the provision of health services, including alternative health services, provided by health practitioners who are not subject to the scheme for registration under the National Law (s 2(a)). In the case of the plaintiff, the Commission considered him to have breached the code of conduct by administering cansema, which constituted the provision of a health service, although it was one outside of his field of registration as a dentist.

[135] The Commission submitted that taking action against the plaintiff on this basis was not inconsistent with the provisions of the Health Care Complaints Act. Counsel for the Commission noted that s 39 of the Health Care Complaints Act refers to a ‘health practitioner’ at large, whether registered or unregistered. Both ss 38(2) and 39(1)(c) refer to the Commission either notifying, or consulting with, respectively, the ‘appropriate professional council (if any)’, and s 38(2) contemplates that such a council may not apply under the circumstances of an investigation.

[136] Furthermore, s 41A(3) of the Health Care Complaints Act states that the Commission must notify the relevant professional council ‘[i]f the Commission is aware that a person in respect of whom it is proposing to make a prohibition order is a registered health practitioner’ (emphasis added). Counsel for the Commission submitted that this section applies in circumstances in which a registered health practitioner has been investigated in respect of conduct outside the scope of his or her registration. She argued that as a matter of statutory interpretation, this provision would have no work to do if there was also a requirement to have consulted with the appropriate professional council in those same circumstances under s 39(2) (emphasis added). The reference to ‘relevant’ professional council in s 41A(3) is consistent with there having been no ‘appropriate’ professional council under s 39(2).

[137] I agree with the Commission’s submissions on this point. In my view, the relevant provisions in ss 38, 39 and 41A, as well as the code of conduct for unregistered health practitioners, contemplate circumstances in which registered health practitioners such as the plaintiff are investigated for providing health services outside of their field of registration. In those circumstances where an appropriate professional council is not applicable, a failure to consult under s 39(2) of the Health Care Complaints Act does not have the effect of invalidating a prohibition order made under s 41A. Rather, the role of the Dental Council arises later, at the stage of a notification under s 41A(3). The Commission complied with this requirement on 24 August 2016, when it sent the letter to the Dental Council as set out under Ground 3. As such, this ground of review fails.”

21. In the HCC Act, “health practitioner” means a natural person who provides a health service whether or not the person is registered under the Health Practitioner Regulation National Law (NSW). A wide range of services, whether provided publicly or privately, can constitute a “health service”. These include medical services, dental services, Chinese medicine, naturopathy, acupuncture, and services provided in “other alternative health care fields”. One does not have to be a registered health practitioner under the National Law to provide health services.

22. Where a health practitioner is registered under the National Law and the complaint is made against the practitioner for breaching the Code of Conduct by providing medical services for which he or she is not registered in a way which breaches the Code, the council for each health profession in respect of which there is a National Health Practitioner Board for that profession will have an interest in the complaint in relation to that particular health practitioner.

23. Complaints about a registered health practitioner may be made under the National Law or under the HCC Act. Under s 144B of the National Law any person can make a complaint (s 144B(1)). A complaint may also be made by a Council. Under s 144C a complaint may be made to a Council or the Commission. Complaints may be made about a registered health practitioner on the grounds in s 144. Those grounds include a complaint that the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. Unsatisfactory professional conduct is defined in ss 139B and 139C. It includes conduct demonstrating knowledge, skill or judgment possessed, or care exercised by the practitioner in the practice of the practitioner’s profession which is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience (s 139B(1)(a)). It also includes any other improper or unethical conduct relating to the practice or purported practice of the practitioner’s profession (s 139B(1)(a) and (l)).

24. The initial complaint by Dr A was made to the Dental Council.

25. A complaint under the HCC Act is made by the lodging of the complaint in writing with the Commission (Section 9(1)). Under s 8(2) the Commissioner may make a complaint under the Act if it appears to the Commissioner that the matter that is the subject of the complaint raises a significant issue of public health or safety or raises a significant question regarding a health service that affects, or is likely to affect, the clinical management or care of an individual client, or if substantiated, would provide grounds for disciplinary action against a health practitioner (amongst other grounds). If the complaint to the Commission (which would include a complaint by the Commissioner under s 8(2)) is made against or directly involves a registered health practitioner, the Commission must notify the appropriate professional council of the complaint (s 10(1)).

26. The Commission must notify the appropriate professional council of the findings if an investigation is conducted under Division 5 (s 38). It must consult with the appropriate professional council before deciding what action to take under s 39(2) and it must notify the appropriate professional council of the results of the investigation, the action taken under s 39 and the reasons for taking that action (s 41(1)).

27. Where the Commission acts under s 41A, it is required to notify the relevant professional council of the proposed prohibition order and to give that council an opportunity to make a submission. That step is in addition to the requirement to consult with the appropriate professional council at the end of the investigation and before deciding which of the actions under s 39(1) to take. If after that consultation the Commission decides to take action under s 41A, it is required to notify the relevant professional council of the proposed order to enable it to make a submission. (s 41A(3)). The Commission is not required under s 41A to give similar notice and opportunity to a professional council to make a submission if it proposes to issue a public statement under s 41A(2)(b). But the Commission is required by s 39(2) to consult with the appropriate professional council before deciding to take the action of issuing a public statement under s 41A(2)(b). The fact that there is an additional requirement for notification and affording the council an opportunity to make a submission before the Commission makes a prohibition order is presumably justified on the basis that this further step may be required in order that the council can consider and make submissions on the precise terms of the order proposed.

28. This extensive requirement for notice to and consultation with professional councils is consistent with the role of the Commission and of professional councils as described in s 3A. It provides:

3A OUTLINE OF ROLE AND PRINCIPLES OF COMMISSION AND RELATED GOVERNMENT AGENCIES IN HEALTH CARE SYSTEM

(1) This section provides an outline of the Commission's role in relation to government agencies with functions in connection with the health care system.

(2) Health Care Complaints Commission The Commission is an independent body with responsibility for dealing with complaints under this Act, with particular emphasis on the investigation and prosecution of serious complaints in consultation with relevant professional councils.

…

(5A) Professional councils Professional councils are responsible for the management of complaints in conjunction with the Commission and protecting the public through promoting and maintaining professional standards.

29. Had the Commission consulted the Dental Council under s 39(2), it is theoretically possible that the Dental Council may have considered that no action under s 41A was appropriate, or that either a prohibition order or a public statement (but not both) would suffice, or that more serious action should be considered, such as referral of the complaint to the Director of Proceedings under s 39(1)(a) for determination as to whether the complaint should be prosecuted before a disciplinary body, or referral of the matter the subject of the complaint to the Director of Public Prosecutions if it were thought that the conduct may have constituted an offence under the Therapeutic Goods Act 1989 (Cth) (Director of Public Prosecutions Act 1986 (NSW), s 24).

30. The primary judge erred in finding that because of the nature of the complaint against the applicant there was no “appropriate professional council” with whom the Commission was required to consult under s 39(2). It follows that the Commission did not comply with Division 6 and that the condition in s 41A(1)(a) to the Commission taking action under that section was not satisfied.

31. The questions then are whether the prohibition order made under s 41A(2) is invalid because the condition for the making of the order was not satisfied; and whether the Commission is not entitled to cause a public statement to be issued, as it proposes to do if the still-pending proceedings in NCAT are determined adversely to the applicant, because the condition for taking that action in s 41A(1) has not been satisfied.

32. The answer to those questions depends upon whether, on the proper interpretation of the HCC Act, failure to comply with s 39(2) rendered the action taken under s 41A(2) invalid (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 375 [41], 390-391 [93]; MZAPC v Minister for Immigration and Border Protection & Anor [2021] HCA 17 (“MZAPC”) at [30], [100], [173]).

33. In Hossain v Minister for Immigration and Border Protection & Anor (2018) 264 CLR 123; [2018] HCA 34, Kiefel CJ, Gageler and Keane JJ said:

“[27] Just as identification of the preconditions to and conditions of an exercise of decision-making power conferred by statute turns on the construction of the statute, so too does discernment of the extent of non-compliance which will result in an otherwise compliant decision lacking the characteristics necessary to be given force and effect by the statute turn on the construction of the statute (Cf Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627 at 640 [35]; [2009] HCA 37). The question of whether a particular failure to comply with an express or implied statutory condition in purporting to make a particular decision is of a magnitude which has resulted in taking the decision outside the jurisdiction conferred by the statute cannot be answered except by reference to the construction of the statute.

…

[29] That a decision-maker ‘must proceed by reference to correct legal principles, correctly applied’ (Plaintiff M61/2010E v The Commonwealth (Offshore Processing Case) (2010) 243 CLR 319 at 354 [78]; [2010] HCA 41) is an ordinarily (although not universally (Eg Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 92 ALJR 248; 351 ALR 225)) implied condition of a statutory conferral of decision-making authority. Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance.

[30] Whilst a statute on its proper construction might set a higher or lower threshold of materiality (Cf SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; [2005] HCA 24), the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of ‘the possibility of a successful outcome’ (Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at 341 [56]; [2015] HCA 40, quoting Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147; [1986] HCA 54. Eg Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610 at 637-638 [78]; [2015] HCA 22), or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was ‘so insignificant that the failure to take it into account could not have materially affected’ the decision that was made (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40; [1986] HCA 40. Cf Martincevic v Commonwealth (2007) 164 FCR 45 at 64-65 [67]-[68]).”

34. In the present case, the condition for the making of a decision under s 41A is express and not implied. Nonetheless, the question remains whether any failure to comply with Division 6 renders action taken by the Commission under s 41A invalid, or whether there is a requirement of materiality, and if so, what that requirement is.

35. In Minister for Immigration v SZMTA (2019) 264 CLR 421; [2019] HCA 3, a case turning on an administrative decision that was impugned for breach of the obligation of procedural fairness, the majority (Bell, Gageler and Keane JJ) said:

“[45] Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.

[46] Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.”

36. In MZAPC the majority (Kiefel CJ, Gageler, Keane and Gleeson JJ) affirmed these principles. Their Honours affirmed (at [31]) that:

“…a statute conferring decision-making authority is not ordinarily to be interpreted as denying legal force to every decision made in breach of a condition which the statute expressly or impliedly requires to be observed in the course of a decision-making process.”

37. It may be noted that their Honours extended the statement in Hossain to conditions imposed expressly as well as those impliedly required. Nonetheless this is subject to the principle that whether there is an implication of materiality is itself a question of statutory interpretation (at [33]). If there is, the implication of materiality is not whether the decision would have been different if the condition had been complied with, but whether it could, as a matter of realistic possibility, have been different (at [34] and [35]). The majority held that the onus of proof of that counterfactual lies on the applicant.

38. There is nothing in the HCC Act to displace the ordinary implication that there be a threshold of materiality before a decision to take action under s 41A(2) is rendered invalid for non-compliance with a requirement of Division 6.

39. On the view taken by the primary judge, questions of materiality did not strictly arise. However, her Honour addressed the issue as follows:

“[138] In the event that I am wrong, I will turn to consider the second of the Commission’s primary submissions, which was that the breach of the requirement under s 39(2), if it was in fact a statutory precondition for action under s 41A, is inconsequential to the outcome of the investigation.

[139] In my view, there is no evidence that had the Commission consulted with the Dental Council prior to determining what action to take under s 39(1) of the Health Care Complaints Act, it would have materially altered the outcome of the investigation. On the contrary, it was the Dental Council that suspended and then imposed conditions on the plaintiff’s practice, acted as respondent to the plaintiff’s other proceedings in this Court, and, when notified under s 41A(3) of the Health Care Complaints Act and given the opportunity to provide submissions concerning the proposed conditions on the plaintiff’s practice, made no approach to the Commission concerning the draft decision. In my view, the consistent position of the Dental Council indicates that that it accepted the prohibition order, and there is no evidence to suggest that it would have intervened had it been consulted under s 39(2) of the Health Care Complaints Act.”

40. With respect, this misstated the test. The question is not whether the outcome of the investigation would have been materially altered had the Commission consulted with the Dental Council, but whether it could have been altered.

41. The test is one of possibility and not probability. But the possibility must be realistic and not merely theoretical.

42. This court is in as good a position as the primary judge to determine the question of materiality.

43. The background to the investigation was summarised by the HCCC in its findings quoted at para [12] above. Further background is found in the first decision of the Dental Council for an order made by the Dental Council on 18 December 2015 suspending the applicant’s registration. In its reasons published on 27 January 2016, the Dental Council stated that the first complaint from Dr A was received by the HCCC on 6 August 2015. Dr A’s complaint was that a patient of his had informed him that she had been diagnosed with a BCC of the nose and had been seeing the applicant for treatment which involved the administration of the substance called “cansema” which was not approved by the Therapeutic Goods Administration. Under the National Law the Council and the Commission were required to consult to see if agreement could be reached between them as to the course of action to be taken concerning the complaint (Section 145A). The Dental Council stated that, following consultation with the HCCC, the complaint was referred to it for management. The Dental Council addressed the complaint in detail.

44. The Council resolved to have an authorised person inspect the premises. A Dr W undertook that inspection on 27 November 2015. He reported on irregular record keeping and reported that a number of entries in the applicant’s records referred to “cansema” which required further investigation. There was also an issue regarding infection control requirements.

45. The Council did not have the powers of the HCCC to require the applicant to produce documents or give information or evidence (compare ss 32-37A of the HCC Act).

46. Section 150 of the National Law relevantly provides:

“150 Suspension or conditions of registration to protect public [NSW]

(1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest--

(a) by order suspend a registered health practitioner's or student's registration; or

(b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate;”

47. The applicant gave oral evidence before the Council on 15 December 2015 but declined to answer certain questions. He submitted that the Council did not have power to deal with Dr A’s complaint because it involved conduct which the applicant said occurred outside the practice of dentistry. The three delegates who conducted the hearing found that a particular patient’s record which used the word “cansema” (about which the applicant declined to answer questions) and which referred to other persons, accompanied by notations regarding the application of cansema as well as prescriptions for scheduled and restricted pharmaceuticals, satisfied the delegates that the applicant was “not compliant in his practice”. They found that some of the drugs being prescribed by the applicant were not drugs ordinarily used in the practice of dentistry. The delegates found: “Although Dr Kirby said that his involvement with persons using cansema were not his patients (sic), the overwhelming evidence in the opinion of the delegates was to the contrary.”

48. Without any explanation from Dr Kirby about this clinical record, the delegates were not satisfied that he knew and understood that he was practising in a manner that put the public at risk. The delegates were also critical of the applicant’s infection control procedures. They concluded:

“The delegates gave careful consideration to whether or not conditions might be imposed upon Dr Kirby. Dr Kirby’s election not to answer their questions in relation to the clinical record was problematic for the delegates. The delegates were left with no explanation as to the matters that have been identified in these reasons. The delegates were concerned that members of the public could be led into believing that Dr Kirby had the necessary qualifications to treat ailments not related to the practice of dentistry, when this was not the case. Dr Kirby demonstrated no understanding of this position.

The delegates were also satisfied that the standard of record keeping as it relates to the prescribing of medications demonstrated conduct that was significantly below the standard that standard reasonably expected of a practitioner of an equivalent level of training and experience.

Accordingly, the delegates considered they had no alternative than to suspend his registration.”

49. As it was required to do, the Council then referred the matter for investigation by the HCCC under s 150D of the National Law. On 29 January 2016 the HCCC advised the applicant that “…following the recent section 150 proceedings before the Dental Council of NSW, the Council have referred a complaint to the Commission which requires investigation”.

50. The applicant exercised his right under s 150A of the National Law to apply to the Council for the review of the Council’s decision.

51. The review by the Dental Council on 12 February 2016 was carried out by the same three delegates as had made the decision of 18 December 2015. Following this review, the delegates concluded that the applicants’ registration did not require suspension and there was no evidence before them that he lacked competence in his practice. At least impliedly, the previous order of suspension was revoked. Instead, the Council, through the delegates, imposed conditions on his registration. Those conditions made no reference to his administration of cansema.

52. As noted above, on 9 March 2016 the HCCC advised the applicant that on 23 February 2016 it had used its own motion powers pursuant to s 8(2) of the HCC Act to initiate a complaint against the applicant on the grounds that his care and treatment of patients with cansema or “cansema-like” substances raised the significant issue of public health or safety or raised the significant question that affected or was likely to affect the clinical management or care of a patient.

53. The Dental Council gave reasons for its decision of 12 February 2016 on 24 March 2016. Those reasons also referred adversely to the applicant’s administration of cansema. The delegates said:

“We believe that his actions in providing care and the practice of assisting these individuals, no matter how well-intentioned, was significantly below the standard required.

It is probable that some of these individuals had serious medical conditions such as metastatic skin lesions, shingles, dehydration and gastrointestinal problems. The services were, we believe, provided, in the main, at his dental practice.”

54. The delegates referred to there being a clear pattern of dental treatment being provided to a particular patient that straddled entries related to the application of cansema.

55. The delegates said that in their opinion the applicant did pose a risk to the safety or health of the public and that the public interest did require them to take action. They noted that, at this hearing, the applicant responded to questioning. He conceded that he had provided services including the application of cansema at his dental surgery whereas at the prior hearing he did not admit that.

56. As noted above, the delegates took the view that the applicant’s registration should not be suspended but conditions were imposed on his registration so that his procedures were limited to specified dental work. One of the conditions imposed was that any patient requiring procedures not amongst those listed be referred to another dental practitioner and that the applicant not undertake solo dental practice. Conditions were also imposed upon the range of drugs that he could prescribe.

57. It is clear that the Dental Council held serious concerns about the applicant’s administration of cansema. The delegates considered that he was administering cansema at his dental practice and that, in relation to one patient, there was a clear pattern of dental treatment being provided to that patient that “straddled the entries related to the application of cansema”. They did not find, and there would be no evident basis for a finding that this was done in the course of providing dental services.

58. The Commission took the view that the service the applicant provided was unrelated to his registration. There is no reason to think that had the Dental Council been consulted by the Commission before the Commission decided to take action under s 41A(2) that it would have opposed the action proposed. To the contrary, the fact that the Dental Council did not respond to the notice given under s 41A(3) by the Commission’s letter of 24 April 2016 indicates that it would have made no objection to the action proposed by the Commission, nor made any suggestion that the Commission should take different action under s 39(1) had it been consulted at the earlier point of the process. The possibility that it might have done so is theoretical rather than realistic.

59. Counsel for the HCCC submitted that in any event, the Commission was not obliged to act on any recommendation of the Dental Council and as the Commission had determined upon the course it proposed to take, there was not a realistic possibility that the Commission would have acted differently if it had consulted with the Dental Council before deciding what action to take under s 39(1). If, contrary to my view, there were a realistic possibility that the Dental Council might have recommended an alternative course of action, I would not accept that there was no realistic possibility that the Commission might have acted differently than it did. The legislative scheme contemplates that the Commission and professional councils act in consultation or in conjunction with each other, which assumes that each will give careful consideration to the other’s views with a mind open to persuasion. Were there a realistic possibility that the Dental Council would have proposed a different course had it been consulted, then given the low bar for materiality, there would necessarily have been a realistic possibility that the Commission’s decision might have been different.

60. However, I accept the Commission’s submission that there was no realistic possibility of the Dental Council’s proposing a different course of conduct than that proposed by the Commission had it been consulted at the earlier stage, as is evident from its lack of response to the Commission’s letter of 24 August 2016.

61. For these reasons I would make the following orders:

1. Grant leave to appeal in respect of grounds 1 to 4 of the draft notice of appeal;

2. Direct that a notice of appeal in accordance with the grant of leave be filed within seven days; and

3. Order that the appeal be dismissed with costs.

62. EMMETT AJA:

Introduction

These proceedings are concerned with the operation of Div 5, Div 6 and Div 6A of the Health Care Complaints Act 1993 (NSW) (the Complaints Act) in relation to the applicant, Dr David Kirby, who is a dentist. Dr Kirby is registered as a health practitioner under the Health Practitioner Regulation National Law (NSW) (the National Law). On 4 October 2016, the respondent, the Health Care Complaints Commission (the Commission), made an order whereby Dr Kirby was permanently prohibited from applying or administering “black salve, red salve, cansema or cansema-like substances to any person, whether at his dental practice premises or elsewhere” (the Prohibition Order). Dr Kirby contends that the Prohibition Order was invalid because the Commission failed to consult with the Dental Council of New South Wales (the Dental Council) before deciding to take the action of making the Prohibition Order.

63. Dr Kirby commenced proceedings in the Supreme Court seeking a declaration that the decision of the Commission was void and of no effect. On 26 August 2020, for reasons published on that day, an associate judge of the Court (the primary judge) ordered that Dr Kirby’s further amended summons filed on 13 August 2019 be dismissed. By summons dated 26 November 2020, Dr Kirby seeks leave to appeal from the orders made by the primary judge.

64. The National Law establishes a national registration and accreditation scheme for registered health practitioners, which includes dealing with complaints and issues arising from a health practitioner’s practice, including performance, conduct and health related concerns. The Dental Council is established under s 41B of the National Law for the dental health profession. The Commission, which is a statutory body established under the Complaints Act, has statutory functions under the National Law.

Background

65. On 18 December 2015, the Dental Council wrote to Dr Kirby saying that, on 15 December 2015, it had decided to take action under the National Law to suspend his registration effective from 18 December 2015. A summary of the reasons for that decision indicated that, when asked by delegates of the Dental Council in what circumstances Dr Kirby used “cansema-like” substances by topical application to the skin of individuals, Dr Kirby gave answers that left the delegates with grave concerns about the use of “this unregulated substance”, as a result of which the delegates had formed the view that the continuation of that practice was of grave risk to the public. On 4 January 2016, Dr Kirby’s solicitors wrote to the Dental Council providing information concerning Dr Kirby’s association with “cansema-like” substances. The letter said that Dr Kirby admitted that he had applied a similar substance to persons who had requested him to do so but that he did so, not in his capacity as a dental practitioner, but in his private and personal capacity.

66. On 9 March 2016, the Commission wrote to Dr Kirby saying that the Commission had used its “own motion powers” to initiate a complaint against him on the grounds that his care and treatment of patients with “cansema” or “cansema-like” substances raised a significant issue of public health or safety or raised a significant question that was likely to affect the clinical management or care of a patient. The letter referred to the possibility that Dr Kirby’s conduct may be in breach of “the Code of Conduct for Unregistered Practitioners”. The code of conduct referred to in the letter is a code of conduct for unregistered health practitioners prescribed by regulations made under s 100 of the Public Health Act 2010 (NSW) (the Code of Conduct). The letter of 9 March 2016 said that the Commission would be investigating whether Dr Kirby performed treatment on patients without proper training, experience and qualifications and whether the conduct was in breach of the Code of Conduct. The letter said that the Commission had several options, including making a prohibition order.

67. The Code of Conduct applies to the provision of health services by:

• health practitioners who are not subject to the scheme for registration under the National Law (including deregistered health practitioners), and

• health practitioners who are registered under the National Law for the provision of health services and who provide health services that are unrelated to their registration.

The Code of Conduct provides that health practitioners may be subject to other requirements relating to the provision of health services to which the Code of Conduct applies.

68. On 17 March 2016, Dr Kirby wrote to the Commission requesting copies of any complaint by the Dental Council referred to the Commission and any documents passing between anyone and the Dental Council and the Commission in relation to any such complaint. Dr Kirby also sought further information in relation to the “cansema-like substance complaint”. The Commission replied on the same day referring to its letter of 9 March 2016 and indicating that it was not required to provide and would not be providing a copy of the requested documentation.

69. On 24 August 2016, the Commission wrote to Dr Kirby saying that the Commission was at the end of the investigation of the complaint undertaken on its own motion. The letter said that the evidence indicated that Dr Kirby had breached the Code of Conduct by providing health services in an unsafe and unethical manner and that he posed a risk to the health or safety of members of the public. The letter said that the Commission proposed to take action under s 41A of the Complaints Act and that the proposed action and the substance of its grounds were set out in the draft statement of decision enclosed. The draft statement of decision proposed that an order be made in the terms of the Prohibition Order. On 28 September 2016, Dr Kirby’s solicitors made submissions in response to the Commission’s invitation to make submissions on the draft statement of decision.

70. On 4 October 2016, the Commission wrote to Dr Kirby again saying that the Commission had finalised its investigation and enclosed its statement of decision. The letter said that the Commissioner had decided to make the Prohibition Order.

Legislative Framework

71. Under s 7 of the Complaints Act, a complaint may be made concerning the professional conduct of a health practitioner, including any alleged breach of a code of conduct prescribed under s 100 of the Public Health Act 2010 (NSW). A health practitioner is a natural person who provides a health service, whether or not the person is registered under the National Law. A complaint may also be made concerning a health service provider. A health service provider is a person who provides a health service, which includes dental services. A complaint may be made against a health service provider even though, at the time the complaint is made, the health service provider is not qualified or entitled to provide the health service concerned.

72. Under s 12 of the Complaints Act, before determining whether to investigate a complaint, to refer the complaint for conciliation, to deal with the complaint under Div 9 of the Complaints Act or to discontinue dealing with the complaint, the Commission must consult with “the appropriate professional council (if any)”. The term professional council means, in relation to a health practitioner in a health profession for which a council is established under s 41B of the National Law, the council for that health profession. The Dental Council is the council for the dental profession. Under s 13 of the Complaints Act, if either the Commission or the appropriate professional council is of the opinion that a complaint, or any part of a complaint, should be investigated, it must be investigated.

71. Under s 29 of the Complaints Act, the investigation of a complaint by the Commission is for the purpose of obtaining information concerning the matter complained of and to determine what action should be taken in respect of the complaint. Section 38 provides that the Commission must notify “the appropriate professional council (if any)” of the findings of an investigation. If the Commission is required to consult with the professional council under s 39(2), the notification may be given at the time of consultation.

72. Section 39(1) of the Complaints Act provides that, at the end of the investigation of a complaint against a health practitioner, the Commission must do one or more of the following:

• refer the complaint to the Director of Proceedings;

• refer the complaint to “the appropriate professional council (if any)” for consideration of the taking of action under the National Law;

• make comments to the health practitioner on the matter the subject of the complaint;

• terminate the matter;

• refer the matter the subject of the complaint to the Director of Public Prosecutions; or

• take action under s 41A.

However, under s 39(2), the Commission must consult with “the appropriate professional council” before deciding what action to take.

75. Section 40(1) of the Complaints Act relevantly provides that, if, at the end of the investigation of a complaint against a health practitioner, the Commission proposes to take action under s 41A, it must first inform the health practitioner of the substance of the grounds of the proposed action and give the health practitioner an opportunity to make submissions. Section 41 relevantly provides that, after the Commission has complied with s 39 and any requirement under s 40, it must notify the parties to the complaint and “the appropriate professional council” of the results of the investigation, the action taken under s 39 and the reasons for taking that action. Under s 41(2), the Commission may, at its discretion, also provide the same information to an appropriate professional or similar association, if there is no “appropriate professional council”.

76. Division 6A of Pt 2 of the Complaints Act, which consists of ss 41AA, 41A, 41B, 41C, 41D and 41E, deals with action against “non-registered health practitioners”. Section 41AA relevantly provides that the Commission may, during any investigation of a complaint against a non-registered health practitioner, make an interim prohibition order in respect of the non-registered health practitioner. The Commission may make an interim prohibition order only if:

• it has reasonable belief that the health practitioner has breached the Code of Conduct; and

• it is of the opinion that the health practitioner poses a serious risk to the health or safety of members of the public and the making of an interim prohibition order is necessary to protect the health or safety of members of the public.

77. Under s 41A(1), the Commission may take action under s 41A if:

• it has complied with Div 6 with respect to an investigation of a complaint against a health practitioner;

• it finds that the health practitioner has breached the Code of Conduct or has been convicted of a relevant offence; and

• it is of the opinion that the health practitioner poses a risk to the health or safety of members of the public.

Under s 41A(2), the action that the Commission may take under s 41A includes making an order (referred to as a prohibition order) that does one or more of the following:

• prohibits the health practitioner from providing health services or specified health services; and

• places such conditions as the Commission thinks appropriate on the provision of health services or specified health services by the health practitioner.

Under s 41A(3), if the Commission is aware that a person in respect of whom it is proposing to make a prohibition order is a registered health practitioner, the Commission must, before making a prohibition order, notify “the relevant professional council” of the proposed order and give “that council” an opportunity to make a submission.

The Question in Issue

78. It is common ground that, prior to making the Prohibition Order on 4 October 2016, the Commission did not consult with the Dental Council or any other professional council. Dr Kirby contends that, in those circumstances, the Commission failed to comply with s 39(2) and, therefore, did not have power to take action under s 41A. That question turns on whether or not, in the circumstances of the present case, the Dental Council was “the appropriate professional council” for the purpose of s 39(2).

79. The Commission contends that, because the complaint investigated by it concerned conduct by Dr Kirby that was not in his capacity as a provider of dental services, there was no “appropriate professional council”. That contention is based on the fact that Dr Kirby maintained that his actions in relation to “cansema” or “cansema-like substances” were undertaken by him in his private and personal capacity and not in his capacity as a dental practitioner. The Commission says, therefore, that there was no “appropriate professional council” to be consulted for the purposes of s 39(2).

80. The primary judge accepted the Commission’s contention in that regard. Her Honour concluded that the relevant provisions contemplate circumstances in which registered health practitioners, such as Dr Kirby, are investigated for providing health services outside their field of registration and that, in those circumstances there is no “appropriate professional council”. Accordingly, there could not have been a failure to consult under s 39(2) of the Complaints Act. Rather, the role of the Dental Council would arise later, at the stage of notification under s 41A(3). Her Honour found that the Commission complied with that requirement on 24 August 2016, when it wrote to the Dental Council and enclosed a copy of the draft statement of decision. Dr Kirby contends that her Honour erred in that conclusion.

81. I have had the advantage of reading in draft form the reasons of White JA for concluding that there was a requirement to consult with the Dental Council but that there was no realistic possibility of the Dental Council proposing a different course of conduct than that proposed by the Commission, had it been consulted at the earliest stage. I agree with his Honour’s conclusions in that regard. However, I have reached a different conclusion as to the construction of the Complaints Act.

82. It is significant that the language of s 41A differs from that of s 39 in requiring notification of “the relevant professional council” where the Commission is aware that a person in respect of whom it is proposing to make a prohibition order is a registered health practitioner. However, the references to “the appropriate professional council (if any)” indicate that the legislature contemplated that there may not be an appropriate professional council in a particular case. I consider that the preferable construction of s 39(2) is that the reference to “the appropriate professional council” should be understood as a reference to the appropriate professional council, if any. In circumstances where, as Dr Kirby contends, the conduct in question was not conduct in his capacity as a registered health practitioner, there was no appropriate professional council. In particular, the Dental Council was not the appropriate council. It follows that there was no failure on the part of the Commission to comply with the provisions of s 39.

83. Nevertheless, I also agree with White JA that this is an appropriate case for the grant of leave to appeal but that the appeal should be dismissed with costs.

**********

Decision last updated: 09 July 2021