Lindsay v Health Care Complaints Commission
[2010] NSWCA 194
•19 August 2010
NEW SOUTH WALES COURT OF APPEAL
CITATION:
Lindsay v Health Care Complaints Commission [2010] NSWCA 194
FILE NUMBER(S):
2008/290113
HEARING DATE(S):
5-7 July 2010
JUDGMENT DATE:
19 August 2010
PARTIES:
David Charles Lindsay (Appellant)
Health Care Complaints Commission (Respondent)
JUDGMENT OF:
Giles JA Young JA Sackville AJA
LOWER COURT JURISDICTION:
Medical Tribunal of New South Wales
LOWER COURT FILE NUMBER(S):
40020/06
LOWER COURT JUDICIAL OFFICER:
Judge Walmsley SC, Dr V Sutton, Dr P Anderson and Ms A Collier
LOWER COURT DATE OF DECISION:
20 August 2008
COUNSEL:
Appellant in person
G Farmer (Respondent)
SOLICITORS:
Appellant in person
K Mobbs, HCCC (Respondent)
CATCHWORDS:
MEDICAL TRIBUNAL – disciplinary proceedings – whether s 37 of the Medical Practice Act 1992 in its pre-2008 form, permits the Tribunal to find that examples of unsatisfactory conduct cumulatively justify a finding of “professional misconduct” – whether a finding of impairment necessarily leads the Tribunal to the decision that a medical practitioner is not competent to practice medicine. PROCEDURAL FAIRNESS – whether the Tribunal denied an unrepresented medical practitioner procedural fairness by limiting cross-examination of witnesses and rejecting questions as irrelevant – whether the Tribunal denied procedural fairness by limiting the evidence that the medical practitioner could adduce where the medical practitioner failed to comply with directions - whether Tribunal gave medical practitioner adequate warning that his conduct during the hearing could be taken into account in making findings. NON-PUBLICATION ORDER – whether Court of Appeal should modify the non-publication order made by the Tribunal.
LEGISLATION CITED:
Civil Procedure Act 2005, s 72 (1)
Evidence Act 1995, ss 11, 26
Health Care Complaints Act 1993, s 42
Health Practitioner Regulation (Adoption of National Law) Act 2009
Health Practitioner Regulation Amendment Act 2010
Medical Practice Act 1992, ss 2A, 36, 37, 39, 41, 51, 60, 61, 62, 64, 89, 90, 91, 147, 148, 154, 165, Sch 2 (cl6),
Medical Practice Amendment Act 2008
Medical Practitioners Act 1938, s 27(1)
Supreme Court Act 1970, s 69
Medical Practice Regulation 1998
Health Practitioner Regulation National Law Act 2009 (Qld)
CATEGORY:
Principal judgment
CASES CITED:
Angaston and District Hospital v Thamm (1987) 47 SASR 177
Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126
Bannister v Walton (1993) 30 NSWLR 699
Caladine v The Commissioner, New South Wales Health Care Complaints Commission [2007] NSWCA 362
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Gad v Health Care Complaints Commission [2002] NSWCA 111
Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304
Health Care Complaints Commission v A Medical Practitioner [2001] NSWCA 158
Health Care Complaints Commission v Karalasingham [2007] NSWCA 267
Health Care Complaints Commission v Wingate [2007] NSWCA 326; 70 NSWLR 323
House v The King [1936] HCA 40; 55 CLR 499
Inghams Enterprises Pty Ltd v Timania Pty Ltd [2005] FCAFC 155; 221 ALR 823
Jobst v Inglis (1986) 41 SASR 399
Kassem v Crossley [2000] NSWCA 276
Lindsay v Health Care Complaints Commission [2004] NSWCA 222
Lindsay v Health Care Complaints Commission [2005] NSWCA 356
Mehmet Ucar v Nylex Industrial Products [2007] VSCA 181; 17 VR 492
Minagall v Ayres [1966] SASR 151
Prakash v Health Care Complaints Commission [2006] NSWCA 153
R v Brown (Milton) [1998] 2 Cr App R 364
Sabag v Health Care Complaints Commission [2001] NSWCA 411
Stojanovski v Gheiti (NSWCA, unreported, 14 May 1996)
Walker v Powers 104 US 245 (1881)
TEXTS CITED:
DECISION:
(1)The appeal under s 90 of the Medical Practice Act 1992 is dismissed.
(2)The application under s 69 of the Supreme Court Act 1970 is dismissed.
(3)The appellant is to pay the costs of the respondent of the appeal under s 90 of the Medical Practice Act 1992 and of the application under s 69 of the Supreme Court Act 1970.
(4) The non-publication order made by the Medical Tribunal of New South Wales on 28 April 2008 be amended, pursuant to the power conferred on this Court by s 91(1)(b) of the Medical Practice Act 1992, to the extent necessary to ensure that it does not prevent publication of the names of any witness, complainant or medical practitioner:
· in the transcript of proceedings in this Court;
· in the judgment of this Court; and
· in any report or publication of the proceedings in
this Court or of the judgment of the Court.
JUDGMENT:
- 88 -
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 2008/290113
GILES JA
YOUNG JA
SACKVILLE AJA19 AUGUST 2010
DAVID CHARLES LINDSAY v HEALTH CARE COMPLAINTS COMMISSION
Judgment
GILES JA: Subject to the following observation, I agree with the reasons of Sackville AJA.
With reference to paras [169] and following of his Honour’s reasons, I respectfully do not think that there was any arguable deficiency in reasons in the Tribunal moving from impairment to the appellant not being competent to practice medicine. Reading the reasons as a whole, the basis for finding impairment inevitably led to incompetence to practice medicine. It was not a case where detailed explanation of the step from impairment to incompetence was necessary.
I agree with the orders proposed.
YOUNG JA: I have had the privilege of reading in draft the reasons for judgment of Sackville AJA.
This appeal has caused me considerable concern as at the hearing I felt that there was a very real possibility that the hearing before the Tribunal was sufficiently unsatisfactory to be said to have denied the appellant procedural fairness. I will mention my principal concerns shortly.
However, having read what Sackville AJA has written, and having again considered the matter deeply personally, I have reached the view that Sackville AJA is correct in saying that the Tribunal hearing did not breach its obligation to accord Mr Lindsay procedural fairness.
The principal matters which gave me concern in this matter can be put under the following heads, which I will list and then briefly discuss.
A.A promise that the Tribunal would give the appellant the opportunity of meeting any observations about his conduct at the proceedings that were brought to his attention before the Tribunal made findings on such matters.
B. Multifariousness.
C. The time limits imposed on the appellant.
D. Limiting cross-examination.
E.Failure to give adequate reasons for accepting some of the respondent’s witnesses.
F. Other matters.
A. As Sackville AJA has pointed out in [249], on 5 May 2008, the Deputy Chairperson, told the appellant that the Tribunal had to take account of its own observations of him in court and those observations would be made known to him and he was at liberty to call evidence or make submissions or otherwise explain such evidence. Further, “the Tribunal will expect that counsel for the HCCC will tell us what conduct it relies on at a time when it is still open to Dr Lindsay to bring forward such evidence as he might desire in order to explain it if he can.” Unfortunately, counsel for the HCCC never did that.
Ground 3 of the notice of appeal is that the Tribunal denied the appellant procedural fairness in that having identified that the appellant’s conduct during the hearing would be taken into account, it failed to identify that conduct, to provide a real opportunity to be heard in respect of the accuracy of the described conduct the reasonableness of the possible conclusions and to give any evidence with respect thereto.
Ground 38 (ix) also makes a complaint about this matter.
It would seem that the notice of appeal was prepared by someone with legal skills. Unfortunately, as the appellant appeared in person he did not flesh out the material supporting some of the grounds of appeal, including ground 3.
There is little doubt that the Tribunal did use its observations as part of the core grounds for its ultimate decision.
There are some indications that the appellant did not feel any prejudice because of this. At pp 52 and 53 of the transcript on the appeal, the matter was raised in argument with the appellant. I asked him:
“Were you ever warned during the 38 days that they intended to use the observations they made of you in court for their findings?”
The appellant answered:
“They told me straight upfront”
There is some ambiguity in this answer which is exacerbated by what follows, for he straightway went on to a side issue and said,:
“That the problem was Justice Walmsley and Vicky Sutton … they were playing good cop/bad cop … “.
This answer fits in with the appellant’s feeling that he had to humour the Tribunal with respect to the “games the members were playing’.
At p 53, Sackville AJA said:
“To be clear about it, whether they were right or wrong in their assessment, you were warned that the way in which you conducted the case, your behaviour might be taken into account by the Tribunal in determining whether you had an impairment”.
Appellant: “Yes. I don’t know how relevant that would be.”
That answer, again is equivocal, did it mean that whilst the appellant knew that the Tribunal would take his conduct during the trial into account, he did not know to what extent it would be used as a core reason for decision.
The rule before tribunals is that “The decision-maker is required to advise [the parties] of any adverse conclusion … which would not obviously be open on the known material” (Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 591-592).
It was this aspect of the case which caused me major concern.
It certainly would have been preferable for things to have been played out as the Deputy Chairperson outlined on 5 May. However, the analysis made by Sackville AJA in [251] and following show that, in the circumstances of this case, the appellant cannot complain that he was taken by surprise by the Tribunal dealing with its observations of him during the proceedings in the way its members did or did not have an opportunity to meet the basic matters of concern to the respondent and the Tribunal.
B. The second matter of concern is that it appears from what the appellant said on the first day of the appeal, that because the case was going to last so long before the Medical Tribunal he was unable to afford legal representation having received a quote from a solicitor of $800,000.
It is fairly clear to everyone that a sole medical practitioner is in no position as a general rule to pay out $800,000 in legal costs. He or she thus has little option either not to defend or to defend himself or herself. If he or she takes the latter course, this in turn generally means that the case will take much longer than it otherwise would have taken.
One of the reasons for the case taking so long was because the complaint made by the HCCC covered a large spectrum of matters. However, it must be said that the appellant’s own conduct of the case also made it extend longer than it should have extended.
This is of concern. However, it is not a simple matter. There might be just as much criticism of the HCCC if it charged a doctor with a succession of charges leading to a succession of hearings until eventually he was found guilty of something. On the other hand, not focusing on the most serious allegations and allowing a whole lot of minor allegations to be put into the one hearing also causes problems.
Up to the reforms in Chancery Procedure in the 19th century, equity suits could be stayed on the ground of multifariousness. As the Supreme Court of the USA said, adopting some words from the then current edition of Storey’s Equity Pleadings in Walker v Powers 104 US 245, 251 (1881), multifariousness means “The improperly joining in one bill distinct and independent matters, and thereby compounding them; as for example the uniting in one bill of several matters, perfectly and distinct and unconnected against one defendant … “.
However, the remedy for multifariousness is to apply at an early stage for part of the charges to be struck out. Once the hearing commences it is usually too late.
Ground 47(i) of the notice of appeal protests that the Tribunal wrongly accepted 36-39 major cases to be heard together which made the cost to the doctor of defending the allegations exorbitant.
There is some good common sense in that statement.
Grounds 12 and to some extent 33, make complaints of like nature. Understandably, none of the grounds employs the term “multifarious”.
However, an additional complication with the Medical Tribunal is that to a degree its work is investigatory and sometimes the final charge cannot be settled until after the hearing has progressed some way.
Despite all these difficulties, justice cannot be done to doctors unless a proper attempt is made to concentrate on the key issues and not to force doctors into long hearings because of joining too many minor matters in with the major allegations.
Additionally, as Sackville AJA points out in [106], the Tribunal is under a statutory duty to determine enquiries expeditiously.
In the instant case, there was no application to stay for multifariousness. The hearing proceeded in a manner which in the circumstances was about as good as could be expected. I do not consider that, at this stage, it would be appropriate to set aside the whole decision for multifariousness.
C. It can be quite unfair where there is a litigant in person in a complex case for a tribunal to make a direction that the litigant must supply witness statements etc within a very limited time. The Tribunal must realize that such litigants need longer time than would be permitted a professional person.
I was concerned that the present appellant may have had too draconian a time limit imposed on him. However, on deeper consideration it seems to me that in this particular case the Tribunal did give adequate time for the appellant to comply with its directions and was justified in rejecting material when the last of the extensions given expired.
D. It seems to me that the directions made by the Deputy Chairperson limiting some of the appellant’s cross-examination were a trifle too restrictive. A person in cross-examination is entitled not only to cross-examine about the evidence which the witness has given, but also as to the credit of the witness and as to other matters which may be relevant to the facts in issue. The appellant here appears to have been more restricted than what he would be permitted to do in most courts and tribunals in the land.
I realize, of course, that the Evidence Act 1995, ss 11 and 26, confer quite a wide power on the President of a court or tribunal to control cross-examination. Because the Tribunal is not confined to admissible evidence, the power of the Chairperson of the Tribunal is probably even wider.
Notwithstanding, the Chairperson must keep in mind that there must be a fair trial and a good benchmark is the scope that is permitted in the ordinary courts for proper cross-examination. That allows cross-examination to extend beyond the factual material which the witness has presented in his or her evidence in chief.
However, in the instant case, as Sackville AJA has demonstrated, whilst there may have been too great a restriction placed on the appellant in his cross-examination of the two witnesses who were the subject of focus on this particular matter, no injustice was in fact done because the material which the appellant wished to have exposed was exposed.
E. I was also a little concerned that on a number of occasions the reasons of the Tribunal simply read “The Tribunal is clearly of the view that it should accept the evidence of X” or some like expression. Despite the fact that the Tribunal is not a court, in a vital matter affecting a person’s professional standing, one would normally expect to see at least brief reasons as to why the Tribunal took that view.
Appeal ground 11 raises failure to give proper reasons, though not focussed on the issue noted in the preceding paragraph.
However, the judgment was a long one, the reasons of the Tribunal for accepting a host of compatible witnesses was readily apparent from the remainder of its consideration of the evidence. I thus do not consider that this is a sufficient matter, even when taken in conjunction with the other four points I have considered, to order a retrial.
F. Although it was not an actual ground of appeal, the appellant from time to time put that if (as appears to be the final position taken by the HCCC) the real issue was whether he was so impaired that he could not properly practise medicine, the proper course was to send the matter to the specialist panel that dealt with those problems rather than for the Tribunal to make a decision itself.
There is certainly a dichotomy in the Medical Practice Act 1992 between complaint matters and matters which should go to the Impaired Registrants Panel. However, it seems to me that it is a limited dichotomy and that if in an inquiry before the Tribunal it appears that the doctor is so impaired that he or she cannot capably practise medicine it can deal with the matter.
Before concluding I should say that I particularly endorse what Sackville AJA said about confidentiality orders. Clause 6 of Schedule 2 to the Medical Practice Act 1992 empowers the person presiding in proceedings before the Tribunal if that person thinks it appropriate in the particular circumstances of the case direct that the name of any witness is not to be disclosed or other details concerning the witness or complainant or the medical practitioner.
It would appear from what we were told that it has become part of the culture of the Tribunal to make an order keeping witness’s names confidential in every case. Such a culture goes against clause 6 which requires the person presiding in the proceedings to make a decision as to whether a confidentiality order is appropriate in the particular circumstances of the case. This means that one cannot just say it must be made unless there are special circumstances to the contrary.
There is no reason why the name of a witness to the Tribunal should not be disclosed unless there are particular circumstances such as the witness is suffering from a condition which it would be embarrassing to have revealed generally, or there is some fear of reprisal. (I do not mean this to be an exhaustive statement).
Generally speaking, so long as the Tribunal observes the usual procedure to protect the people appearing before it from being the victims of identity fraud, there is no reason why the public generally should not know what witnesses were called before the Tribunal.
To conclude, as I have said, I had reservations about the fairness of the proceedings at the end of the oral hearing. However, I have now considered the matters again and have carefully read the draft judgment of Sackville AJA and am now comfortably satisfied that the orders which his Honour proposes are correct.
SACKVILLE AJA: The appellant’s name was removed from the Register of Medical Practitioners by an order made by the Medical Tribunal of New South Wales (“Tribunal”) on 20 August 2008. The Tribunal also directed that the appellant not apply for review of the deregistration order for a period of three years. The appellant challenges the Tribunal’s decision by an appeal to this Court under s 90 of the Medical Practice Act 1992 (“Act”) and an application under s 69 of the Supreme Court Act 1970 (“SC Act”) for relief in the nature of certiorari quashing the Tribunal’s decision.
The appellant practised until December 2007 in Sydney’s central business district as a general practitioner with a special interest in skin cancers and prophylactic skin treatment. For some years he had conducted a skin cancer clinic as a sole practitioner. The appellant ceased to practise in consequence of an order made by the New South Wales Medical Board (“Board”) under s 66 of the Act suspending him from practising medicine for a period of eight weeks. The appellant’s suspension was extended on a number of occasions until the Tribunal made its deregistration order.
The Tribunal upheld four complaints against the appellant and rejected two complaints. The four complaints upheld, as summarised by the Tribunal, were as follows:
“Complaint One:
Acts which might be regarded as threatening conduct directed to patients, medical colleagues and others, with the apparent object of stopping them or others from giving evidence against him in disciplinary proceedings.
Complaint Three:
As failure to make and keep proper records of medical treatment.
Complaint Four:
Acts which might be regarded as extreme rudeness and lack of sensitivity in his contact with patients, their families and friends, and, in three cases, a significant lack of clinical skills.
Complaint Five:
An allegation that he suffers from an impairment which detrimentally affects his mental capacity to practise medicine …
The Tribunal found that the impairment suffered by the appellant was a:
“delusional disorder of a persecutory type [that] satisfies the diagnostic criteria for that disorder contained in DSM-IV-TR [Diagnostic and Statistical Manual of Mental Disorders (4th ed)].”
The two rejected complaints were summarised by the Tribunal as follows:
“Complaint Two:
A lack of good character.
Complaint Six:
An allegation that he made or authorized recordings of conversations with patients or their relatives, and, in one case, a psychiatrist to whom he had been referred for the purpose of these proceedings, without disclosing he was doing so, or receiving their consent.”
The Tribunal was satisfied (at [732]) that it had jurisdiction under s 64 of the Act to order the appellant’s deregistration, for two reasons. First, by reason of its finding as to the appellant’s impairment, it was satisfied that he was “not competent to practise medicine” (s 64(1)(a)). Secondly, by reason of the matters proved in relation to Complaints One, Three and Four the appellant was guilty of “professional misconduct” (s 64(1)(b)).
The Tribunal was of the “very firm view” (at [733]) that the appellant was unfit to practise medicine. It was also of the “very strong view” (at [724]) that the only way the public could be protected was by making an order which had the effect of preventing the appellant from practising medicine.
The appellant was legally represented at an early stage of the proceedings against him in the Tribunal, but was not represented at the hearing, which ran for forty days over the period from 28 April 2008 to 1 July 2008. The Health Care Complaints Commission (“HCCC”) was represented at the hearing by senior and junior counsel, reflecting the length and complexity of the proceedings.
The appellant has also represented himself on the appeal. (I include in the expression “appeal” the application for relief in the nature of certiorari, which invokes the original jurisdiction of this Court.) For reasons that will become apparent, the fact that the appellant has chosen or been forced to represent himself has created considerable difficulties not only in the conduct of the proceedings before the Tribunal but in the conduct of the appeal to this Court.
THE LEGISLATION
The following outline of the Act refers to provisions in force at the time of the Tribunal hearing. The Act was amended by the Medical Practice Amendment Act 2008 (“2008 Act”), which relevantly came into force on 1 August 2008, after the hearing had ended but before the Tribunal handed down its reasons on 20 August 2008. For the most part, the amendments effected by the 2008 Act had no substantive impact on the legislation in force at the date of the hearing. However, it will be necessary to refer later to the substituted definition of “professional misconduct”, which the 2008 Act inserted into the Act.
It should be noted that the Act has been repealed by the Health Practitioner Regulation Amendment Act 2010 (“2010 Act”). The 2010Act amends the Health Practitioner Regulation (Adoption of National Law) Act 2009 (“2009 Act”), which adopts (with modifications) the Health Practitioner Regulation National Law set out in the Schedule to the Health Practitioner Regulation National Law Act of Queensland. The 2009 Act came into force on 1 July 2010, as did the 2010 Act: 2009 Act, s 2; 2010 Act, s 2. It is not necessary for present purposes to refer to the new legislative scheme.
The object of the Act is to protect the health and safety of the public by providing mechanisms designed to ensure, inter alia, that medical practitioners are fit to practise medicine: s 2A.
Part 4 of the Act deals with complaints about medical practitioners. Any person may make a complaint: s 41. A complaint is to be made to the Board established under Part 10 of the Act, or to the HCCC constituted under the Health Care Complaints Act 1993: s 42. The Board itself can make a complaint: s 41.
Section 39 of the Act provides that any of the following complaints can be made about a registered medical practitioner:
“(a) …
(b)Unsatisfactory professional conduct or professional misconduct
A complaint that the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct.
(c) Lack of competence
A complaint that the practitioner is not competent to practise medicine (that is, the person does not have sufficient physical capacity, mental capacity or skill to practise medicine or does not have sufficient communication skills for the practice of medicine, including an adequate command of the English language).
(d) Impairment
A complaint that the practitioner suffers from an impairment.
(e) Character
A complaint that the practitioner is not of good character.”
“Unsatisfactory professional conduct” is defined by s 36, for the purposes of the Act, to include each of the following:
“(a) Conduct significantly below reasonable standard
Any conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
(b) Contravention of Act or regulations
Any contravention by the practitioner (whether by act or omission) of a provision of this Act or the regulations.
…
(m) Other improper or unethical conduct
Any other improper or unethical conduct relating to the practice or purported practice of medicine.”
Section 37 of the Act defines “professional misconduct of a registered medical practitioner” to mean:
“… unsatisfactory professional conduct of a sufficiently serious nature to justify suspension of the practitioner from practising medicine or the removal of the practitioner’s name from the Register.”
As I have noted, the 2008 Act repealed s 37 and substituted a new definition of “professional misconduct of a registered medical practitioner”, as follows:
“For the purposes of this Act, professional misconduct of a registered medical practitioner means:
(a)unsatisfactory professional conduct, or
(b)more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct,
of a sufficiently serious nature to justify suspension of the practitioner from practising medicine or the removal of the practitioner’s name from the Register.”
Section 38 of the 2008 Act provided that s 37, as substituted by the 2008 Act:
“extends to instances of unsatisfactory professional conduct occurring before the section is substituted.”
Both the substituted s 37 and s 38 were in force at the time the Tribunal delivered its reasons on 20 August 2008.
The Dictionary to the Act contains the following definitions:
“2 Competence to practise medicine
A person is competent to practise medicine only if the person:
(a)has sufficient physical capacity, mental capacity and skill to practise medicine, and
(b)has sufficient communication skills for the practice of medicine, including an adequate command of the English language.
3 Impairment
A person is considered to suffer from an impairment if the person suffers from any physical or mental impairment, disability, condition or disorder which detrimentally affects or is likely to detrimentally affect the person’s physical or mental capacity to practise medicine. Habitual drunkenness or addiction to a deleterious drug is considered to be a physical or mental disorder.”
If a complaint is made to the HCCC, or if the HCCC has itself decided to make a complaint, it has various courses of action open to it. These include referring the complaint to the Tribunal: s 51(1)(a). The members of the Tribunal are to conduct an inquiry into any complaint so referred: s 159.
For the purposes of conducting an inquiry into a complaint, the Tribunal is to consist of:
the Chairperson or Deputy Chairperson (who must be a Judge of the Supreme Court or District Court);
two registered medical practitioners; and
one lay person (ss 147(3), (5), 148(1), (9)).
The decision of the Chairperson or a Deputy Chairperson on any question of law or procedure arising during an inquiry at which he or she presides is the decision of the Tribunal for the purposes of the inquiry: s 154(1).
The Tribunal is to conduct proceedings on an inquiry “as it thinks fit” s 161(1). The Tribunal is not bound to observe the rules of law governing the admission of evidence, but may inform itself of any matter in such manner as it thinks fit: sched 2, cl 1.
The Tribunal may exercise any power, or combination of powers, conferred on it by Div 4 of Part 4 (ss 60-65) of the Act if it finds the subject matter of the complaint against a person to have been proved or admitted: s 60. The powers of the Tribunal include giving a caution or reprimand, ordering the person to undergo medical or psychiatric treatment or counselling, imposing conditions on the person’s registration or imposing a fine: ss 61, 62.
Section 64 of the Act relevantly provides as follows:
“(1) The Tribunal may by order suspend a person from practising medicine for a specified period or direct that a person be deregistered if the Tribunal is satisfied (when it finds on a complaint about the person):
(a)that the person is not competent to practise medicine, or
…”
Section 165 requires the Tribunal to provide details of its decision:
“(1) The Tribunal must provide a written statement of a decision on an inquiry or appeal to the complainant, to the practitioner concerned and to the Board, and must do so as soon as practicable after the decision is made (bearing in mind the public welfare and seriousness of the matter).
(2) The statement of a decision must:
(a)set out any findings on material questions of fact, and
(b)refer to any evidence or other material on which the findings were based, and
(c) give the reasons for the decision.”
The person presiding in proceedings before the Tribunal may, if he or she thinks it appropriate in the particular circumstances of the case, direct that all or any of the following matters not be published:
“• the name and address of any witness,
• the name and address of a complainant,
• the name and address of a registered medical practitioner,
• any specified evidence,
• the subject-matter of a complaint”:
sched 2, cl 6(1)(b). A direction may be amended or revoked at any time by the person presiding: sched 2, cl 6(2).
Division 2 of Part 6 (ss 89-91) of the Act deals with appeals against actions of the Tribunal. Sections 90 and 91 relevantly provide as follows:
90 Appeal against Tribunal’s decisions and actions
“(1) A person about whom a complaint is referred to the Tribunal, or the complainant, may appeal to the Supreme Court against:
(a)a decision of the Tribunal with respect to a point of law, or
(b)the exercise of any power by the Tribunal under Division 4 (Disciplinary powers of Committees and Tribunal) of Part 4.
…
(3) The Supreme Court may stay any order made by the Tribunal, on such terms as the Court sees fit, until such time as the Court determines the appeal.
91 Powers of Court on appeal
(1) In determining the appeal, the Supreme Court may:
(a)dismiss the appeal, or
(b)make such order as it thinks proper having regard to the merits of the case and the public welfare, and in doing so may exercise any one or more of the powers of the Tribunal under this Act.
(2) If the Court dismisses an appeal against an order of the Tribunal, the Court may by order direct that the Tribunal’s order is to be taken to include provision that an application for its review under Division 3 may not be made until after a specified time.”
BACKGROUND
The appellant was born in 1965 and graduated from the University of Sydney in 1989 with the degrees of Bachelor of Medicine and Bachelor of Surgery.
After working successively as an intern, resident and registrar at several hospitals, he was employed from 1993 to 1996 as a general practitioner at the Sydney Skin Cancer Clinic. He subsequently opened his own practice and, except for a very short period, worked as a sole practitioner until his suspension in December 2007. From 1998, the appellant’s mother, Ms Glynne, worked at the practice as the financial controller. The Tribunal found that Ms Glynne performed a significant role in all aspects of the appellant’s practice, including dealing with numerous patient complaints.
Although the appellant was not a specialist, many patients saw him as specialising in skin cancers. The appellant bulk billed – that is, he accepted the patients’ Medicare benefits by way of assignment as full payment for his services. The appellant’s clinic was open six days per week and on weekdays he would typically see between forty and sixty patients. The clinic had three examination rooms, allowing the appellant to see three patients at once.
The clinic’s staff usually consisted of two full time receptionists as well as Ms Glynne. The practice’s records were not computerised and, as the Tribunal found, the appellant frequently failed to record properly the treatment he had provided or the advice given to the patient.
Over the years, the appellant attracted a number of complaints from patients. According to the Tribunal (at [32]), by 2005, complaints were coming in “at an alarming rate”. In the usual course, Ms Glynne would handle complaints as they were made. She would frequently instruct the appellant’s then solicitor as to what to say and he would then “write to the Board, or the HCCC [Health Care Complaints Commission], usually in a somewhat bombastic style, invariably denying the patient’s version of events”.
The present proceedings were commenced on 31 January 2007, when the HCCC, pursuant to s 51(1) of the Act referred complaints to the Tribunal. The initial referral was limited to Complaints One and Two (threatening conduct and want of good character). However, the four additional complaints were subsequently added in circumstances that are outlined below ([96]–[99]).
PREVIOUS DISCIPLINARY PROCEEDINGS
Complaints of Unsatisfactory Professional ConductThe disciplinary proceedings determined by the Tribunal were not the first to have been brought against the appellant.
In 1998, a patient complained to the Board about the appellant’s treatment of a squamous cell carcinoma. The complaint was referred to a Professional Standards Committed (“PSC”), which held an inquiry in March 2001. In its reasons published in July 2001, the PSC made a number of adverse findings against the appellant, including findings that he should have referred the patient to a specialist and that he had failed to maintain adequate records. The Board reprimanded the appellant, fined him $3,300 and, pursuant to s 61(1)(c) of the Act, imposed several conditions on his right to practice. The conditions required the appellant to maintain a record of all surgical procedures, submit to a random audit of his medical records and undergo an inspection of his clinic to determine compliance with the standards for removal of skin lesions.
The appellant appealed to the Tribunal, as he was entitled to do under s 87(1) of the Act. The appeal was conducted as a fresh hearing and the appellant was represented by counsel. On the fifth day of the hearing, the Deputy Chairperson warned the appellant’s counsel that the Tribunal might impose more substantial penalties and conditions on the appellant than the Board, should the hearing proceed to finality. The appellant’s counsel then applied to withdraw the appeal and asked the Tribunal to make the same determination as had been made by the PSC. The Tribunal acceded to the application and, subject to minor modifications, effectively made the same orders as the PSC.
The appellant subsequently filed a summons under s 69 of the SC Act seeking to quash the Tribunal’s decision on the ground that it had been vitiated by a lack of procedural fairness. The appellant was represented by counsel on the application. The Court of Appeal dismissed the summons, essentially on the basis that the appellant had made an informed forensic decision at the Tribunal with the benefit of legal advice: Lindsay v Health Care Complaints Commission [2004] NSWCA 222, at [40], per Mason P (with whom Santow JA and Pearlman AJA agreed).
The appellant was the subject of a second complaint in 2004. This complaint related to the treatment of two patients in 2000 and an alleged failure by the appellant to maintain proper medical records. The Tribunal found that the appellant’s treatment of the two patients constituted unsatisfactory professional conduct and, further, that he had failed to maintain adequate and legible records. The Tribunal severely reprimanded the appellant for his failure to keep adequate medical records in relation to the two patients and imposed conditions on his right to practise. The conditions included random audits and the appointment of a supervisor to monitor the appellant’s capacity to practise medicine safely.
The appellant succeeded in having the findings of the Tribunal on unsatisfactory professional conduct set aside on appeal, on the ground that the Tribunal had erred on a point of law: Lindsay v Health Care Complaints Commission [2005] NSWCA 356. However, the Court of Appeal undertook its own assessment of the appellant’s conduct in relation to the keeping of records. It concluded that the appellant had shown an “arrogant refusal” to face up to the requirement in the Medical Practice Regulation 1998 that the records include sufficient information to allow another practitioner to continue the management of the patient’s care: at [66], per Hunt AJA (with whom Mason P and Hodgson JA agreed). The Court therefore found that the appellant was guilty of unsatisfactory professional conduct in relation to the records. In substance, the Court affirmed the orders made by the Tribunal.
Referral to Impairment Panel
The Tribunal’s reasons in the present case record that as a result of a complaint by a general practitioner in 1998, the Board referred the appellant to an Impaired Registrants Panel, established under s 182 of the Act. In January 1999, the appellant was required to undergo psychiatric treatment. In December 1999, the Board directed that the appellant should leave the Impaired Registrants Program.
SCOPE OF AN APPEAL
Section 90 of the Act confers what have been described as “bifurcated rights” of appeal from a decision of, or the exercise of a disciplinary power by, the Tribunal: Prakash v Health Care Complaints Commission [2006] NSWCA 153, at [81], per Basten JA. Section 90(1)(a) confers on the medical practitioner concerned a right to appeal against “a decision of the Tribunal with respect to a point of law”. Section 90(1)(b) confers a right of appeal against “the exercise of any power by the Tribunal under [Div 4 of Part 4]”. In the present case, as I have noted, the Tribunal exercised the power conferred by s 64(1)(a) in Div 4 of Part 4 to deregister the appellant. It also made an order pursuant to s 64(1)(b) providing that the appellant could not apply for review of the deregistration order for a period of at least three years.
The decisions against which the appellant has a right of appeal under s 90(1)(a) are the findings that Complaints One, Three, Four and Five were made out against him. The limitation in s 90(1)(a), that the appeal must be against a decision with respect to a point of law, does not mean that the right of appeal is confined to an appeal against a decision specifically on a point of law. As Basten JA, with whom Giles JA and Bergin J agreed, observed in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267, at [14], [16]:
“It is not necessary that a matter of law be separately identified and decided by the Tribunal: it is sufficient that the Tribunal needs to identify and apply a principle in reaching its decision and, in doing so makes an error with respect to a point of law …
Accordingly, it is sufficient if the Appellant can identify a decision of the Tribunal which, if it is not the ultimate decision [nonetheless] is material to it, and that the decision was erroneous in point of law.”
See also Health Care Complaints Commission v Wingate [2007] NSWCA 326; 70 NSWLR 323, at 328 [23], per Basten JA (with whom McColl JA and Harrison J agreed).
It follows that on an appeal against a decision of the Tribunal it is necessary to distinguish points of law (which are subject to appeal) from questions of fact (which are not). The distinction is not always clear-cut. In this context, Basten JA in HCCC v Karalasingham quoted with approval (at [18]) the language of Jordan CJ in Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126, at 138:
“[I]f the facts inferred … from the evidence … are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law.”
An example of such a case is Health Care Complaints Commission v A Medical Practitioner [2001] NSWCA 158, where the Court held, contrary to the conclusion of the Tribunal, that the only possible conclusion in a case of prescription of an excessive (and fatal) dose of pain medication was a finding of unsatisfactory professional conduct.
Section 90(1)(b) confers, in one sense, a wider right of appeal than s 90(1)(a), since the right of appeal against the Tribunal’s exercise of a disciplinary power is not confined to errors of law: Bannister v Walton (1993) 30 NSWLR 699, at 732, per Mahoney JA (with whom Clarke JA agreed); at 734, per Priestly JA; HCCC v Karalasingham, at [23]. However, s 90(1)(b) does not permit the appellate court to go beyond the primary facts found by the Tribunal. The appellate court therefore proceeds on the basis that the factual findings underlying the ultimate decision of the Tribunal are not open to scrutiny: Bannister v Walton, at 734, per Priestly JA; Sabag v Health Care Complaints Commission [2001] NSWCA 411, at [6], per Davies AJA (with whom Beazley JA and Sperling J agreed on this issue).
In Bannister v Walton, at 735, Clarke JA added a qualification to the proposition that the appellate court acts on the basis that the factual findings underlying the Tribunal’s exercise of disciplinary powers are not open to scrutiny. His Honour said this (at 735):
“It may be, however, that the tribunal may reach conclusions on a number of factual issues which while not strictly relevant to the complaint may be considered to be of importance in determining what is the appropriate order to be made pursuant to s 32R [the equivalent to s 64]. In cases where this occurs it would seem to me that this Court would be entitled to examine those conclusions in exercising its power to review the order under s 32U(1)(b) [the equivalent to s 90(1)(b)].”
In Prakash v HCCC, Basten JA pointed out (at [85]) that subsequent cases have recognised that the power to make a disciplinary order is discretionary in nature. Accordingly, once a finding of professional misconduct is made and withstands challenge, an appellant can attack an exercise of the disciplinary power only by identifying an error that would vitiate the exercise of discretion, conformably with the principles stated in House v The King [1936] HCA 40; 55 CLR 499, at 504-505, per Dixon, Evatt and McTiernan JJ. As Basten JA noted (at [89]-[90]):
“at least in relation to findings of professional misconduct, where the complaint is found proved and not challenged, or the challenge is unsuccessful, the proper inference from the statutory scheme is that the challenge to the order of the Tribunal, so far as it does not identify an error of law, must identify an error of principle, but one which does not form a basis of the finding that the complaint has been proved. In the case of a finding of professional misconduct, this may be a serious constraint, because almost any circumstance affecting the severity of the misconduct, will be relevant to the finding that it was indeed ‘professional misconduct’. Thus an appellant who is able to challenge only the order made by the Tribunal may well be effectively limited to such matters as a failure to give proper weight to prior good conduct or evidence of rehabilitation.
As a practical matter, it is almost inevitable that the findings which inform the conclusion that the conduct complained of is professional misconduct will also be of direct relevance in the exercise of the consequential power to make a protective order. Because these matters are not subject to review, there is a danger in describing the right of appeal with respect to the exercise of power as a ‘general appeal’, without noting the constraints on the scope of the appeal imposed, at least implicitly, by its statutory and litigious context.”
If the Tribunal’s decision that a practitioner has committed unsatisfactory professional conduct or professional misconduct is held to be affected by an error of law, the Court may make its own characterisation of the conduct on the basis of the Tribunal’s findings of fact: Lindsay v HCCC (2005), at [43], [65]-[67], per Hunt AJA (with whom Mason P and Hodgson JA agreed); HCCC v A Medical Practitioner, at [42]-[43], per Stein JA (with whom Powell JA and Rolfe AJA agreed). In these circumstances, the Court can also make its own assessment of the appropriate sanctions to be imposed on the practitioner: Lindsay v HCCC (2005) at [84]-[94]. However, a court will be very cautious before making its own characterisation of conduct established to the satisfaction of the Tribunal. This is because the Tribunal is a specialist body which applies its medical expertise to the issues before it: Lindsay v HCCC (2005), at [46].
THE COMPLAINTS
As I have noted, the proceedings before the Tribunal ultimately involved six separate complaints against the appellant. These were set out in a document which, like some of its predecessors, was described as a Further Amended Notice of Complaint (“FANC”). The Final Complaint, as I describe the FANC in its final form, was 58 pages in length, and included extensive particulars.
There was some confusion during the hearing of the appeal as to how and when the Final Complaint took the form it did. The confusion was created because not all the relevant documents were included in the appeal books (which in any event were not properly indexed or paginated) and the HCCC did not provide a chronology or bundle that set out the precise sequence of amendments.
The initial version of the complaint against the appellant was dated 31 January 2007. This version was limited to Complaints One (threatening conduct) and Two (not of good character).
A document entitled “Further Amended Notice of Complaint” (but not in the form of the Final Complaint) was filed on 7 April 2008, although the appellant had been provided with a draft of this version in January 2008. This version of the FANC included Complaints Three (inadequate records), Four (improper and unethical conduct) and Five (impairment). Complaint Five erroneously referred to the appellant suffering an impairment within the meaning of s 39(e) of the Act, when it should have referred to s 39(d).
On the Day 26 of the hearing (4 June 2008), senior counsel for the HCCC renewed an application to make a number of what were described as “minor amendments” to the then current version of the FANC. The application had originally been made during the opening of the case, but had been deferred to give the appellant an opportunity to consider the proposed amendments. The proposed amendments included deleting the reference to s 39(e) in Complaint Five and substituting a correct reference to s 39(d). With one minor exception, the appellant did not oppose the amendments and the Deputy Chairperson duly allowed them to be made.
On Day 27 (10 June 2008), the HCCC applied to further amend the FANC (as amended on 4 June 2008) to include Complaint Six (unauthorised recordings of conversations) and to add Complaint Six to the particulars to Complaint Five (impairment). The appellant opposed this application on the ground, among others, that the application had been made too late in the proceedings.
The Deputy Chairperson delivered an ex tempore judgment in which he allowed the amendments. His Honour pointed out that the HCCC could not have made the application any earlier, since evidence of the appellant tape recording conversations only emerged at the hearing. His Honour also took into account that there was no prejudice to the appellant, since the HCCC was relying on his own admissions made in the course of his case to the Tribunal.
The appellant, in his argument on the appeal, complained repeatedly and at length that he had been denied procedural fairness by the Tribunal’s decision to permit the HCCC to amend the FANC on 4 June 2008. In particular, the appellant complained that he had somehow been misled by the erroneous reference to s 39(e) in Complaint Five, as set out in the pre-4 June 2008 version of the FANC, into believing that the Complaint did not allege any relevant impairment. He also claimed that the erroneous reference to s 39(e) in Complaint Five had been deliberately inserted in order to mislead him.
The appellant’s assertion that he had been misled by the erroneous reference to s 39(e) of the Act was not supported by any evidence admitted on the appeal. Moreover, it is very difficult to accept that the appellant could have been misled by the incorrect reference. The nature of the allegations in Complaint Five was made perfectly clear by the explicit references to “impairment” and “mental impairment” and by the particulars. In addition, Complaint Five expressly incorporated the definition of “impairment” in cl 3 of the Dictionary to the Act.
In any event, an application to amend Complaint Five to correct the error was foreshadowed in the HCCC’s opening and was not opposed by the appellant when the application was renewed on 4 June 2010. At that time the appellant made no suggestion that he had been misled. His assertion that he did not understand that the Complaint alleged impairment cannot be accepted. There is no substance in the appellant’s complaint about the amendment to Complaint Five.
The appellant also complained about the Tribunal’s decision to permit an amendment to the FANC to include Complaint Six. In my view, the Tribunal’s decision to permit this amendment also did not involve any denial of procedural fairness. The appellant was given an opportunity to object to the amendment and to deal with the allegations once Complaint Six was amended. Furthermore, the appellant’s submissions on this issue overlooked the Tribunal’s finding that Complaint Six had not been made out (a finding that precluded the allegation of improper or inappropriate recording of conversations playing any part in the Tribunal’s conclusion that the appellant suffered from an impairment). Even assuming the Tribunal was wrong to allow Complaint Six to be added to the FANC, the amendment did not prejudice the appellant.
OBSERVATIONS ABOUT THE PROCEEDINGS
The Tribunal HearingIn the Final Complaint, the appellant was said to be guilty of unsatisfactory professional conduct and professional misconduct, to suffer from “an impairment which prevented him from having the mental capacity and skills to practice medicine” and to be of bad character. The various complaints were not expressed to be in the alternative, although the HCCC ultimately appeared to accept before the Tribunal that a finding of impairment might make it unnecessary or inappropriate to uphold at least some of the other complaints.
Having regard to the wide-ranging nature of the allegations and the particulars, it is not surprising that the HCCC called no less than 48 lay, medical and expert witnesses. Having regard to the appellant’s lack of legal representation and his personal characteristics (to use a neutral expression), it is also not surprising that he chose to cross-examine all 48 witnesses, often at length and without any clear forensic purpose. It is equally unsurprising that, in consequence of these matters the Tribunal was required to sit for 40 hearing days. On any view, a hearing of this magnitude imposes a very substantial burden on a medical practitioner, especially one who is not legally represented. It is also extremely time consuming, not least for the members of the Tribunal, and expensive.
The Act expressly permits the Tribunal to deal with more than one complaint about a medical practitioner: sched 2, cl 5(1). It is also open to the Tribunal to deal with complaints in the alternative. For example, a complaint of impairment can be coupled with an alternative complaint of professional misconduct or unsatisfactory professional conduct: Caladine v The Commissioner, New South Wales Health Care Complaints Commission [2007] NSWCA 362. However, the Tribunal is also under a statutory duty to hear and determine inquiries expeditiously: sched 2, cl 10(1).
I accept that even a single complaint may well generate substantial factual disputes and complex questions as to appropriate standards or treatment. Nonetheless, it is important to bear in mind the difficulties that can be created by proceedings that are unnecessarily lengthy, expensive and complex. In Bannister v Walton, Mahoney JA pointed (at 733) to the need to ensure that proceedings in the Tribunal “are conducted, not merely justly, but efficiently, economically and timeously”. His Honour’s comments were primarily directed to the powers available to the Tribunal to control its own proceedings, but they apply, in my view, equally to those who are responsible for formulating and pursuing complaints against medical practitioners. If a large number of complaints are pursued in the one hearing, particularly where complaints of impairment are combined with complaints alleging professional misconduct or unsatisfactory professional conduct, the proceedings may become unnecessarily burdensome for all concerned, especially for the medical practitioner.
Conduct of the Tribunal Hearing and the Appeal
It is clear from the Tribunal’s reasons and from a reading of portions of the transcript of the Tribunal’s proceedings that the appellant’s behaviour in the proceedings, independently of its significance for the impairment complaint, created difficulties in ensuring that the hearing was conducted in an orderly and reasonably expeditious manner. The difficulties were compounded by the appellant’s inability or unwillingness to comply with directions. An example is the appellant’s failure to comply with directions made on 21 February 2008 that he notify the HCCC by 20 March 2008 if he proposed to make any allegations of conspiracy, mala fides or improper conduct. That direction was never complied with. In addition, the appellant repeatedly failed to comply with directions that he file and serve statements of evidence.
The difficulties were equally apparent on the appeal. The appellant’s “Final Amended Notice of Appeal” (“FANA”) contained 66 separate grounds of appeal, some of which contained a number of sub-paragraphs. Some 43 of these grounds were apparently drafted by senior counsel acting pro bono for the appellant, on the basis of a reading of the Tribunal’s reasons. The appellant himself supplemented these grounds in a manner that shed little light on his case. The summons filed by the appellant seeking relief in the nature of certiorari did not specify the grounds on which such relief was sought. The appellant did not comply with directions to specify the grounds.
In September 2009, the appellant served a document of 218 pages entitled “Affidavit re Summons s 69”. This document was ultimately received by the Court as a submission. The bulk of this submission consists of unsubstantiated and often scurrilous accusations against a wide range of people, including complainant patients, medical and expert witnesses, Tribunal members and the appellant’s previous lawyers. Very little of the submission appears to advance the appellant’s case and there is no attempt to develop the grounds of appeal in a systematic, let alone concise, manner.
The appellant was subsequently directed to prepare revised written submissions in chief limited to 40 pages and to file written submissions in reply limited to 10 pages. The appellant ignored these directions and filed a further submission on 8 April 2010 (after the HCCC had filed its written submissions on 12 March 2010). The appellant’s further submissions are 328 pages in length. The contents are similar to those of the “Affidavit re Summons s 69”.
The appellant’s oral submissions in chief on the appeal followed a similar pattern to his written submissions. The appellant was repeatedly reminded by the Court of the limitations on the scope of the appeal. He was apparently unable or unwilling to recognise that an appeal was not available against factual findings, in the absence of an error of law. Nor did the appellant develop in a coherent way any of the grounds identified in the FANA, despite being invited by the Court to do so. Similarly, the appellant was apparently unable or unwilling to recognize the limitations on his application under s 69 of the SC Act. As to both the appeal and the application under s 69 he voiced his views on the proceedings brought against him and their conduct in an indiscriminate manner.
Following the hearing, the HCCC was given leave to make additional written submissions on several issues. The HCCC’s additional submissions were not lengthy. However, they elicited further lengthy inadequately paginated submissions similar in length to the appellant’s earlier submissions.
The voluminous appeal books prepared by the appellant contained a vast amount of irrelevant material. The difficulty of following them was increased by the absence of pagination and proper indexing. When the Court attempted to isolate arguments that the appellant could legitimately advance on the appeal (including the summons under s 69 of the SC Act) it became apparent that relevant material, including certain interlocutory judgments delivered by the Deputy Chairperson of the Tribunal, was not included in the appeal books. Unfortunately, the HCCC did not follow the practice often adopted by statutory bodies opposed by an unrepresented appellant of compiling and filing its own appeal books or supplementing the materials to ensure that the Court has the documentation it requires and that the documentation is appropriately organised.
In order to do justice to the appellant, but without providing him with an inappropriate advantage, it has been necessary to distil from the mass of material, arguments advanced by him which were truly available on the appeal or the application under s 69 of the SC Act, discarding the manifestly misconceived or irrelevant. The Court attempted to identify these arguments in the course of the hearing. Mr Farmer, who appeared for the HCCC on the appeal, was given the opportunity of addressing them.
Non-Publication Order
On the first day of the hearing, the Tribunal made a direction pursuant to cl 6 of sched 2 to the Act that there be no publication of the name or address of any witness, complainant or medical practitioner until further order. The Deputy Chairperson did not give detailed reasons for making the order. However, he indicated that he was influenced to do so by the fact that the appellant was representing himself and, unlike a legal representative, he was not bound by ethical rules governing the making of serious allegations against witnesses or other persons involved in the proceedings. It does not appear that consideration was given to exercising the power to revoke or amend the direction (cl 6(2)), once the Tribunal had determined that none of the appellant’s allegations of misconduct or conspiracy was supported by the evidence.
No challenge was made on the appeal to the direction made by the Tribunal. The appellant belatedly applied for leave to amend the FANA to include such a challenge. Having regard to the unconvincing reasons given by the appellant for the lateness of his application, the Court refused to grant leave.
The precise scope of the Tribunal’s non-publication direction is not entirely clear. In particular, it is not clear whether the direction prevents this Court publishing names of witnesses who gave evidence in the Tribunal in the judgment. Nor is it clear whether a third party can publish what appears in the transcript of argument on the appeal or in this judgment.
This Court has power to prohibit publication or disclosure of any information tending to reveal the identity of any party to the proceedings or “witness in the proceedings”, if it is of the opinion that it is necessary to do so to secure the proper administration of justice: Civil Procedure Act 2005, s 72(1). The Court in determining an appeal from the Tribunal, also may make such order as it thinks proper having regard to the merits of the case and the public welfare and, in doing so, may exercise any one or more powers of the Tribunal: Act, s 91(1)(b).
Whatever justification there may have been for the Tribunal’s non-publication direction, there is in my opinion no justification for the direction to prevent publication of identifying information in relation to witnesses in this Court’s judgment or the transcript of the proceedings in this Court. In my view, the power in s 91(1)(b) extends to exercising the Tribunal’s power to revoke or amend a non-publication order, at least where the revocation or amendment is ordered in the Court’s judgment disposing of the appeal. Accordingly, the Tribunal’s non-publication direction should be amended to the extent necessary so that it does not prevent publication of the names of any witness, complainant or medical practitioner referred to:
in the transcript of proceedings in this Court;
in the judgment of this Court; and
in any report or publication of the proceedings in this Court or the judgment of the Court.
TRIBUNAL’S REASONS
The Tribunal was constituted by His Honour Judge Walmsley SC, Dr Victoria Sutton (a general practitioner), Dr Peter Anderson (a consultant psychiatrist) and a lay member, Ms Anne Collier. The Tribunal’s reasons are extensive, comprising 381 pages. The following is a brief account of those reasons.
The Tribunal noted (at [40]) that it had had the opportunity to observe the appellant as a party appearing for himself and as a witness. It found (at [51]) that it could not accept the appellant’s word on any matter where it conflicted with that of factual witnesses, except where it was corroborated independently.
The Tribunal then dealt with each of the six complaints. Complaint One particularised five instances of threatening behaviour by the appellant towards colleagues, patients and a member of the public. According to the HCCC, the particulars, if established, showed that the appellant had been:
“guilty of unsatisfactory professional conduct within the meaning of section 36 of the Act and/or professional misconduct within the meaning of section 37 of the Act in that he [had]:
demonstrated that the knowledge, skill or judgment possessed, or care exercised, by him in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience;
and/or engaged in improper or unethical conduct relating to the practice of medicine.”
The Tribunal found (at [100], [120], [133], [147], [161]) that each of the five separate allegations, with one minor exception, had been established. The Tribunal also found in each case that:
“the matters proved amounted to unsatisfactory professional conduct based on lack of judgment and its being improper or unethical conduct relating to the practice of medicine.”
The Tribunal was satisfied (at [163]):
“accordingly, that the proved instances of unsatisfactory professional conduct under Complaint One amount collectively to professional misconduct.” (Emphasis added.)
In relation to Complaint Two, the Tribunal found (at [170]) that because the appellant’s threatening conduct was due to his impairment, the conduct was not sufficiently significant to show that he was not of good character. It followed (at [171]) that Complaint Two was not made out.
The Tribunal next addressed Complaint Three, the particulars to which were as follows:
“Between 7 March and 2 April 2005, the practitioner failed to make a proper record of the particulars of treatment provided by him to twenty patients on the dates set out in Schedule B to this Complaint, in the form and containing the details required by, Clause 5 and Schedule 2 of the Medical Practice Regulation 2003.”
The Tribunal recited the conditions which had previously been imposed on the appellant’s right to practise and referred to the record-keeping requirements specified in the Medical Practice Act Regulations 2003 (“Regulations”). The Tribunal also referred to audits of the appellant’s medical records that had been conducted in 2004 and 2005, each of which demonstrated serious deficiencies, and to the report of an independent general practitioner who had commented adversely on the state of the appellant’s records.
The Tribunal recorded (at [196]) its observation that the appellant, even during the hearing, was not prepared to accept the need to keep clinical records which complied with the Regulations. The Tribunal noted that all three expert witnesses had made the point that, quite apart from gaps in the records, the appellant’s notes were simply impossible to read.
The Tribunal made the following findings (at [198]-[200]):
“Although failure to keep proper medical records would rarely be, of itself, sufficient to justify suspension or deregistration, the Tribunal accepts the HCCC’s submission that in this case it is justified. It is to be recalled that the quality of Dr Lindsay’s notes had, long before these proceedings, been the subject of concern to and investigation by the Board. The imposition of conditions such as those imposed on 23 July 2001, is designed to ensure compliance with the law. However, the conditions appear to have had no effect on Dr Lindsay.
…
The Tribunal has given earnest consideration to whether [the appellant’s] failure to comply with the [Regulations] was due to his impairment … There was no expert evidence on the issue. It is possible Dr Lindsay’s narcissism had led him to the view that proper record keeping is below him. Alternatively his lack of insight may have prevented him from accepting that there may be circumstances in which another doctor needs to read his records without having him there to interpret them. It may simply be the product of an arrogant attitude to disciplinary authorities. Or it may be that he simply sees too many patients and does not have the time.
Ultimately we have reached the view that Dr Lindsay’s failure to keep proper records is not the product of his impairment, but a course of deliberate conduct. In the Tribunal’s view it amounts to a deliberate departure from accepted standards of practise … The breach is such a significant one of its kind that we are of the view that it amounts to professional misconduct.”
Complaint Four provided particulars of nineteen patient complaints made after consultations with the appellant or following visits to the clinic which were terminated before consultations had begun by reason of the appellant’s behaviour. Most of the complaints concerned rudeness, threatening, offensive or disparaging conduct, or a failure to listen to patients; only three alleged that the appellant had demonstrated poor clinical skills.
The Tribunal found, with minor exceptions, that each complaint had been made out and that, in each case, the appellant had been guilty of unsatisfactory professional conduct. The basis for the finding of unsatisfactory professional conduct was variously said to be a lack of care, skill, knowledge and judgment, improper or unethical conduct relating to the practice of medicine or both. In some cases this conduct was found to have involved breaches of the Regulations.
In three cases (Patients I, J and K) the Tribunal found that the appellant had provided inappropriate care. The specific findings included the following:
the appellant inappropriately performed a procedure, without anaesthetic, on a lesion on Patient I’s leg that exposed her to undue pain and to a risk (which ensued) of bleeding from an open wound;
the appellant made inappropriate notations in Patient I’s records (as he did with many other patients) accusing her of having a “severe personality disorder”;
the appellant administered unnecessary and inappropriate treatment to Patient J;
the appellant suspected that a lesion on Patient J’s chest might be a basal cell carcinoma, but failed for a lengthy period to perform a biopsy on the lesion and also failed to refer Patient J to a dermatologist or plastic surgeon;
the appellant made inappropriate notations on Patient J’s records, including describing Patient J as “Psychopath. Passive aggressive”; and
the appellant subjected Patient K to undue distress and discomfort by treating an excessive number of sunspots in the course of a single consultation.
The Tribunal expressed (at [578]) its conclusion on Complaint Four as follows:
“The Complaint alleged that the whole of the conduct particularised under Complaint Four amounted to ‘unsatisfactory professional conduct and/or professional misconduct’. The Complaint did not specify whether any part of Complaint Four on its own was alleged to constitute professional misconduct … However, Ms Adamson submitted that, taken as a whole, the conduct alleged in Complaint Four is sufficiently serious to justify suspension or deregistration and amounts to professional misconduct. The Tribunal considers that the proved conduct relating to each of Patients I, J and K, is a serious form of unsatisfactory professional conduct. Each case alone could, as Ms Adamson argued, be said to amount to professional misconduct. But the Tribunal has the strong view that all of the instances of proved unsatisfactory professional conduct under Complaint Four amount collectively to professional misconduct. So we do not think it necessary to decide that issue.
…
The Tribunal finds that collectively, all of the instances of unsatisfactory professional conduct proved to our satisfaction under Complaint Four, amounted to professional misconduct.” (Emphasis added, citations omitted.)
Complaint Five alleged that the appellant suffered from an impairment within the meaning of s 39(d) of the Act. The particulars of the Complaint were as follows:
“The practitioner suffers from a mental impairment, disability, condition or disorder which detrimentally affects or is likely to detrimentally affect his mental capacity to practice medicine in that:
(a) he manifests a belief system that is consistent with either:
a.overvalued ideas derived from Paranoid Personality Disorder; or
b.persecutory delusions derived from a Delusional Disorder; and
(b) his belief system, which is persecutory in nature:
a.compromises his capacity to create and maintain a therapeutic relationship with his patients;
b.has the tendency to lead the practitioner to mistrust his patients;
c.has the tendency to cause the practitioner to respond inappropriately with his patients, their associates, and with other medical practitioners;
d.has the tendency to cause the practitioner to castigate those who criticize the treatment he provides to his patients as psychopaths and/or participants in a conspiracy against him;
e.compromises his ability to judge whether his perceptions are based on external reality;
f.compromises his capacity to have insight into his mental state and the effect of his belief system on his perception of external reality;
g.compromises his capacity to respond appropriately to complaints made against him to professional bodies.”
The Tribunal recorded (at [589]) the HCCC’s submission that the appellant suffered from an impairment which deprives him of insight and of the capacity to reform or act differently. The HCCC described this complaint as “overarching” and submitted that:
“the reason for the behaviour described at length under Complaints One and Four is that [the appellant] has either a paranoid personality disorder or a delusional disorder with paranoid features.”
The HCCC also submitted to the Tribunal that it was not necessary for the Tribunal to establish particular diagnosis. It was enough, so the HCCC argued, that “the constellation of symptoms and behaviour manifested by [the appellant]” was sufficient to amount to an impairment, whatever the diagnosis.
The Tribunal recounted at length the appellant’s history of dealings with psychiatrists, including those with the Impaired Registrants Panel, and with a psychologist appointed by the Panel. The Tribunal also considered in detail the reports and evidence of Dr Allnutt, a consultant psychiatrist who saw the appellant for the purposes of the proceedings, and of Dr Westmore, a psychiatrist whose views differed somewhat from those of Dr Allnutt. Dr Allnutt’s preferred diagnosis was a “delusional disorder”, reflected in the appellant’s degree of conviction that he was the subject of a conspiracy perpetrated against him, predominantly by professionals and professional bodies.
The Tribunal made observations or findings on the issue of impairment, including the following:
throughout the hearing, the appellant had seen a number of matters of apparent irrelevance or small significance as highly relevant and had seen apparently innocent incidents as masking malicious motives (at [638]);
the appellant repeatedly formed the view, without justification, that patients who complained about him were part of a conspiracy against him (at [641]), [647]);
the appellant’s lack of insight had made it difficult, if not impossible, for him to distinguish between normal and abnormal behaviour by his patients, such that he sees the slightest suggestion of criticism as evidence of a conspiracy or, at the least, very bad behaviour (at [651]);
the Tribunal accepted Dr Allnutt’s view that the appellant suffered from a delusional disorder (at [659]);
the large number of patient complaints and the appellant’s inability to accept any responsibility for the complaints supported a finding of impairment (at [664]); and
the appellant’s conduct at the hearing indicated that he was incapable of following directions from the Deputy Chairperson, experienced extreme difficulty in ceasing a course of action (such as a line of questioning) once it had started and was “so over inclusive that the hearing took much longer” than if the appellant had been competently represented (at [667]).
The Tribunal accepted (at [668]) the HCCC’s submission that the appellant suffered from a relevant impairment. It gave 27 separate reasons for doing so, including the following:
“(a) … Dr Allnutt’s diagnosis that [the appellant] has a delusional disorder with its persecutory and paranoid traits;
(b) [the appellant’s] very clear lack of insight. … [The appellant] has, to the Tribunal’s observation, shown limited insight throughout these proceedings. Obvious examples are his apparent incapacity to look objectively at any of the complaints and see why his conduct was unacceptable. It is true that at times [the appellant] showed some insight … but such displays of insight were, to the Tribunal’s observation, unusual;
(c) since [the appellant] lacks insight about the complaints, the Tribunal concludes he is incapable of learning from them …;
(d) …the Tribunal is of the view there are no objective grounds for [the appellant’s] complaints of persecution. In particular, in the Tribunal’s view, not one of the many complainants who gave evidence about [the appellant] provides any objective basis for his feelings of persecution;
…
(i) [the appellant’s] inclination to instruct solicitors to prosecute patients for criminal offences when they had complained about some aspect of treatment, or to send bombastic letters of demand to them;
(j) [the appellant’s] conduct in these proceedings, in causing to be issued a very large number of summonses to former patients, their current and former doctors, HCCC and Medical Board employees, with a concurrent lack of relevance and empathy …;
(k) the large number of the complaints and the similarity of the complaints;
(l) [the appellant’s] suggesting to certain patients … when cross-examining them that they had been ‘excited’ by events in which they had participated; or that they had become excited by being complainants; or that they had complained for ‘revenge’ or as part of a conspiracy;
…
(o) [The appellant’s] manner with witnesses, such as [revealed in] the following extracts from his cross-examination of Dr Patrick …
(p) [the appellant’s] assertion Dr Patrick had been motivated to give false evidence because he was a competitor, absent any such evidence;
…
(r) questions in cross-examination such as one to Patient B to the effect he may have been feeling ‘guilty’ about his own conduct in [the appellant’s] consultation room;
(s) questions in cross-examination such as to Patient C with its underlying notion of conspiracy, and to Patient D suggesting that she had hoped he might misdiagnose her or remove the wrong mole;
…
(w) suggestions to complainants through the hearing, that they had been ‘coached’, this suggestion arising from their use of words such as ‘tone’ and ‘manner’;
(x) his view which he expressed to the Tribunal that because his mental state was in question, he had the right to investigate the mental state of the witnesses;
(y) his apparent inability, as displayed to the Tribunal, to accept even hypothetically that there might be an occasion when another doctor would need to take over his patients …
(z) his apparent contempt for legal requirements such as that he keep proper medical records …” (Transcript references omitted.)
For these reasons, the Tribunal concluded (at [670]-[671]) that the appellant suffered from a delusional disorder of a persecutory type and that, by reason of the impairment, he was not competent to practise medicine.
The Tribunal found (at [722]) that no part of Complaint Six (relating to alleged inappropriate recording of conversations) had been made out to the requisite degree of proof.
In the concluding section of its reasons, the Tribunal expressed (at [724]):
“the very strong view that the only way the public can be protected is by … making an order which has the effect of preventing [the appellant] from practising.”
The Tribunal set out (at [725]) 17 reasons for reaching this conclusion. The first reason was the finding that the appellant was impaired. Other reasons included the appellant’s “propensity to gross overreaction to minor criticism”, his disinclination to communicate or to keep adequate records, his hasty manner of conducting examinations, his extraordinarily rude behaviour towards patients and their relatives, his lack of insight; and his lack of competence in dealing with Patients I, J and K.
The Tribunal, as I have noted earlier, considered (at [732]) that it had jurisdiction to order the appellant’s suspension or deregistration. The jurisdiction was enlivened because of the findings that:
due to his impairment, the appellant was not competent to practise medicine (s 64(1)(a)); and
the matters proved in relation to Complaints One, Three and Four amounted to professional misconduct (s 64(1)(b)).
The Tribunal considered (at [733]) that the appellant was unfit to practise medicine and it doubted whether he would ever be fit. The Tribunal’s view (at [734]) was that there were no conditions that could be imposed on the appellant’s registration which would adequately protect the public. An order for suspension was inappropriate, as the Tribunal could not be satisfied that the appellant would be fit to practise after the expiration of any particular time (at [736]). The Tribunal did not wish to give the appellant any false encouragement and considered that he should not be permitted to seek a review of the deregistration order for a period of three years (at [738]-[739]).
In the absence of any submissions by the HCCC suggesting that the principles I have outlined do not apply to the Tribunal, I think it appropriate to apply the principles to the Tribunal’s fact finding processes in the present case. Certainly the Tribunal’s duty to accord procedural fairness to the appellant is not more onerous than the duty imposed on a court exercising similar functions.
Course of Events in the Tribunal
Ms Adamson SC, in opening the HCCC’s case against the appellant in the Tribunal, adverted to the possibility that the appellant’s demeanour and behaviour in the Tribunal, but outside the witness box, could be taken into account by the Tribunal in determining whether he suffered from an impairment. Subsequently, the Deputy Chairperson invited Ms Adamson to make further submissions on the significance of the appellant’s demeanour and behaviour, including the notice the Tribunal was required to give him that it might take his behaviour into account. Ms Adamson responded to the invitation on Day 5 of the hearing (Friday, 2 May 2008).
In her further submissions made on that day, Ms Adamson referred the Tribunal to authorities discussing the entitlement of a court or tribunal to take into account “real evidence” in the form of a party’s demeanour or behaviour outside the witness box, but in the sight or hearing of the court or tribunal. While emphasising that the Tribunal was entitled to take that course, Ms Adamson drew attention to the Tribunal’s duty to inform the party that its observations might be taken into account. That duty, she accepted, arose because the party, or his or her representatives, had to be accorded an opportunity to persuade the decision-maker not to draw any adverse inferences from the observed behaviour.
Ms Adamson submitted that, in general, there was no requirement to notify a party in advance that real evidence of this kind could be taken into account. But she acknowledged that where a party was unrepresented (as was the appellant), the Tribunal might be disentitled from taking observed demeanour or behaviour into account unless a warning was given. While not conceding the point, Ms Adamson suggested that if the Tribunal gave the appellant a fresh warning, there would be no difficulty about taking into account his observed demeanour or behaviour from the time of the warning had been given.
At the conclusion of Ms Adamson’s submissions and the appellant’s submissions in response, the Deputy Chairperson made the following statement in the Tribunal:
“before I start on Monday morning I will say something so as to put you formally on notice, Dr Lindsay, as to the extent to which in court conduct will be taken into account, just so that it’s on the record and that you have an understanding of it, how we will use it. I say that bearing in mind the submissions that Ms Adamson put to us today. I just want to work out precisely what I want to say to you, and I will say it to you on Monday morning.”
On Monday, 5 May 2008, the sixth day of the hearing, the Deputy Chairperson delivered a judgment addressing the use that the Tribunal could make of the appellant’s “in court conduct and demeanour”. His Honour said this:
“I consider that it would be unfair to [the appellant], given that he has not been warned until in the course of the opening, and has not been represented, for us to take account of his conduct, until the matter was raised. However I now use this opportunity to draw [the appellant’s] attention to the right that the Tribunal undoubtedly has to take account of our observations of him in court from now on when he is and is not giving evidence. How he deals with that is a matter for him but it follows that having been put on notice, he must be taken as knowing that these observations may be made and taken account of and that he will, if he considers it appropriate, be at liberty to call evidence or make submissions or otherwise explain such evidence as the HCCC may rely on. At the same time, the Tribunal will expect that counsel for the HCCC will tell us what conduct it relies on at a time when it is still open to Dr Lindsay to bring forward such evidence as he might desire in order to explain it if he can.” (Emphasis added.)
Thereafter, according to Mr Farmer’s submissions to this Court, reference was made in the hearing from time to time to the appellant’s conduct of his case. With one possible exception, the examples given by Mr Farmer could not be said to have put the appellant on notice that particular behaviour inside the Tribunal or in the conduct of his case could be taken into account on the issue of impairment. The possible exception is that Dr Allnutt was asked by Ms Adamson in his examination in chief (Day 21) whether written submissions made by the appellant to the Tribunal, apparently at some stage in those proceedings, were consistent with Dr Allnutt’s diagnosis of a paranoid personality disorder or persecutory delusions derived from a delusional disorder. Dr Allnutt answered in the affirmative, giving brief reasons.
The Tribunal concluded taking evidence on Day 34 of the hearing (Monday, 23 June 2008). On that afternoon, so the transcript suggests, Ms Adamson provided the appellant and the Tribunal with the HCCC’s written submissions. These were very detailed, comprising 174 single spaced pages, with several schedules attached. Ms Adamson made her closing address to the Tribunal on Day 35 (Wednesday, 25 June 2008). In that address she spoke to her written submissions.
The HCCC’s written submissions to the Tribunal included a section of four pages headed “General submission on impairment”. In this section (at [57]-[67]), the HCCC contended that the appellant’s conduct in the Tribunal was “further evidence of impairment”. The submissions specifically (at [61]) identified a number of aspects of the appellant’s conduct during the course of the hearing that were said to support a finding of impairment:
“a.His making of allegations that persons or bodies are engaged or have engaged in a conspiracy against him, including the following:
i.The Complainant, including its employees, or counsel appearing on its behalf in the proceedings;
ii.The Medical Board;
iii.His patients or persons who were potential patients;
iv.Medical practitioners who have treated any of the patients or potential patients who have complained about him;
v.Persons who have made a complaint about him;
vi.Other persons who are colleagues or associates of iii, iv and v above;
vii. Expert witnesses in the proceedings.
b.His failure to accept that any of the complaints made against him which are alleged in the Complaint are genuinely based;
c.His preoccupation with small slights;
d.His readiness to infer that a complainant has been coached by the Complainant in formulating the complaint from use of common English words, such as ‘tone’, ‘manner’ etc. (instances of this are set out in a table in Schedule Three);
e.His insistence that he has no psychiatric disorder, illness or impairment;
f.His requests that numerous summons be issued to attend and to produce documents to persons, in circumstances where the width of the summons could reasonably be expected to intimidate such persons and dissuade them from giving evidence adverse to the respondent in the proceedings; and his pressing of such summons notwithstanding objection by:
i. the Complainant (in respect of all of them);
ii. the Crown Solicitor’s Office;
iii. Avant Insurance; and
iv. the Medical Board;
g.His tendency to disparage persons by applying psychiatric diagnoses to them (including ‘psychopath’, ‘narcissistic’, ‘borderline’ or ‘sociopath’) without reasonable grounds;
h.His statements to the effect that he believes in the concept of ‘symmetry’ which is variously applied to the following:
i.Because senior counsel for the Complainant has accused him of professional misconduct and referred to his psychiatric condition, he is entitled to do the same to her.
ii.Because patients have not, in his view, behaved appropriately towards him, he is entitled, if not obliged to discipline them by calling the police, or commencing proceedings against them or otherwise rebuking them;
iii.If a patient behaves inappropriately, he becomes a ‘security guard’ for his practice;
iv.Because his mental state is in question in the proceedings, he is entitled to examine and investigate the mental state of each of the witnesses.” (Citations to transcript and other sources omitted.)
The HCCC’s submissions stated that examples of the appellant’s tendency to refute the substance of a complaint by reference to his perception of the motive of the person expressing an adverse view were “legion”. The submissions went on to cite the appellant’s cross-examination of Dr Patrick, a medical practitioner who gave evidence about the inadequacies of the appellant’s records. Dr Patrick had no previous association with the appellant. Nonetheless, without “a shadow of a foundation”, the appellant had made a series of allegations that Dr Patrick had set out to harm him and had done so because he was a competitor (although he was not) and wished to protect his business interests.
In the section of the HCCC’s written submissions dealing specifically with Complaint Five (impairment), examples were given of the appellant’s “narcissism” revealed by his conduct of the proceedings. The submissions cited the appellant’s condemnatory observations directed to a patient who had complained about him. They also cited the appellant’s cross-examination of Dr Allnutt, in which the appellant implicitly criticised the witness for failing to care for him and stop his suffering, notwithstanding that Dr Allnutt, as the appellant knew, had been engaged by the Board not as a therapist to assess the appellant’s mental health.
At the conclusion of Ms Adamson’s closing submissions, the Deputy Chairperson asked the appellant whether he wished to commence his submissions on the following day (Thursday 26 May 2008). The appellant responded that he was willing to commence immediately. The Deputy Chairperson suggested that the appellant might think about directing his response to the HCCC’s written submissions, as supplemented by Ms Adamson’s closing address.
The appellant’s closing address continued for four days. A reading of the transcript of those four days demonstrates that the Deputy Chairperson showed considerable patience in dealing with the appellant, who repeatedly veered off into irrelevant and often offensive submissions. The Deputy Chairperson repeatedly reminded the appellant of the need to address the issues in dispute and to respond to the HCCC’s arguments.
Ms Adamson interrupted the appellant’s submissions on 26 June 2008 (Day 36) in order to tender a tape recording of a conversation between the appellant and a patient, apparently in support of Complaint Six. The HCCC was given leave to re-open its case for this purpose. When the appellant indicated that he wished to say something about the contents of the tape recording, the Deputy Chairperson observed to Ms Adamson that the appellant was entitled to call evidence in response to the material tendered. The Deputy Chairperson then advised the appellant that he could give evidence, if he wished, supporting his contention that he was justified in making the recording. The appellant thereupon went into the witness box, gave evidence and was briefly cross-examined. At the conclusion of the appellant’s evidence, the Deputy Chairperson noted that the HCCC’s re-opened case had closed.
With encouragement from the Deputy Chairperson, the appellant from time to time turned his attention to responding to the HCCC’s submissions. Over four pages of transcript (Black 4, 3004-3008) the appellant responded to the HCCC’s general submissions on impairment ([57]-[66]), including the contentions that the Tribunal should take into account specific aspects of the appellant’s demeanour in the Tribunal. At one point, the appellant referred to a footnote in the HCCC’s submissions which noted that he had described the HCCC itself as “pathological” and a “psychopathic organisation”. The appellant’s comment in his closing submissions was that he would:
“stand by that at the moment. Cheeky as it is I’ll stand by that one.”
The appellant responded to the HCCC’s reliance on what it claimed was his misplaced concept of “symmetry”. He said that all he meant was that if someone accused him of certain things “we just need to see that they’re of good character, so balancing it that way”. He also agreed that he was investigating the mental state of each witness:
“If that’s an explanation for their conduct, sometimes it’s the most efficient easy way to explain their conduct is that it’s their nature for example, then I will go there. I said before I don’t normally go there, I’m really not interested in people’s mental states, it’s not my concern. But I am when they’re trying to destroy a doctor and costing me a lot of money, a lot of worry, stress, and what’s even more frightening there’s doctors involved at the other end, we know that.”
At no stage in his submissions did the appellant indicate that he wished to re-open his case to adduce evidence to explain his behaviour in the Tribunal or to demonstrate that his behaviour should not be regarded as indicative of an impairment. Equally, at no stage did the Tribunal specifically advise the appellant that if he wished to adduce evidence of that kind, he could re-open his case to do so.
On 1 July 2008 (Day 39), in the course of his closing address the appellant made a series of unsubstantiated allegations about a particular witness. The Deputy Chairperson intervened as follows (Black 4, 3082):
“You know, you understand, Dr Lindsay, when you make these allegations, outrageous allegations in the absence of evidence you, apart from the fact that there’s some evidence you don’t like, it is something which we can take into account on the issue of impairment, and I have asked you so many times during the course of these proceedings ---“
Ms Adamson’s reply to the appellant’s submissions was limited to an observation that “the way in which the [appellant] has addressed the Tribunal can obviously be taken into account by the Tribunal”. She added that the HCCC had “said enough in writing as to the points we wish to make about that”.
Reasoning
The appellant was given formal notice on the sixth day of the hearing that the Tribunal had the right to take account of its observation of him in court when he was not giving evidence. He was also specifically advised that he would be at liberty to call evidence or make submissions or otherwise explain the matters relied on by the HCCC. The Tribunal stated that it expected counsel for the HCCC to tell the Tribunal what conduct it relied on at a time when it was still open to the appellant to bring forward evidence to explain his conduct, if he could.
The HCCC’s written submissions, given to the appellant on or shortly after the 34th day of the hearing, specifically identified a number of aspects of the appellant’s behaviour in court that it asked the Tribunal to take into account on the question of impairment. The appellant replied to the HCCC’s written submissions on the significance of his in-court behaviour in his oral submissions to the Tribunal. The appellant was reminded in the course of his submissions and in Ms Adamson’s reply that his behaviour could be taken into account.
It is difficult to see how the HCCC could have identified in a systematic and complete fashion the aspects of the appellant’s behaviour that it wanted the Tribunal to take into account any earlier than it did. Perhaps the HCCC or the Tribunal could have identified particular conduct of the appellant as indicative of impairment as the evidence and the proceedings were unfolding. But if this had been attempted, it necessarily would have had to be done in a piecemeal and incomplete fashion and would have made the Tribunal’s task in conducting the proceedings in an orderly fashion even more difficult.
The appellant was not rushed into making his response to the HCCC’s submissions. He did not ask for more time to prepare and declined the offer to defer his own presentation until the day after Ms Adamson completed her closing address. The appellant’s own address continued for four days during which he had ample opportunity to put forward arguments on his own behalf.
Subject to two questions, I think that the appellant received a clear and timely warning about the potential significance of his in-court behaviour and a fair opportunity to respond to the aspects of his behaviour identified in the HCCC’s written submissions. The two questions are these:
(i)Did the Tribunal take into account aspects of the appellant’s in-court demeanour or behaviour other than those identified in the HCCC’s submissions?
(ii)What is the significance of the fact that the appellant was not explicitly informed, after he received the HCCC’s written submissions, that he could re-open his case if he wished to adduce (relevant) evidence explaining his behaviour or demonstrating that his behaviour was not necessarily indicative of an impairment of the kind alleged in Complaint Five?
The Tribunal’s reasons for finding that the appellant suffered from a relevant impairment were summarised at [668], reproduced at [138] above. The Tribunal’s reasons included the following:
the appellant’s lack of insight and his inability to assess his own conduct ([668(b)]);
the appellant’s attempts to issue for the purposes of the proceedings very large numbers of summonses ([668(j)]);
inappropriate suggestions or sarcastic manner made by the appellant when cross-examining patients or doctors ([668(l), (o), (p), (s), (w)]);
the appellant’s propounding of unfounded conspiracy theories ([668(u)]);
the appellant’s expressed view that because his mental state was in question, he could investigate the mental state of witnesses ([668(x)]; and
his inability to accept, even hypothetically, that another doctor could take over his patients ([668(y)]).
The Tribunal’s findings on these matters were not necessarily based exclusively on the appellant’s in-court demeanour or behaviour. However, to the extent that they were, the appellant was clearly put on notice that the Tribunal might rely on them. Each of the matters was specifically identified in the HCCC’s written submissions provided to the appellant on 23 June 2008. This can be seen by comparing the HCCC’s written submissions at [57]-[66] (see [252]-[254] above), with matters to which I have referred.
The Tribunal also made findings about the appellant’s “narcissism” (at [632]-[636]), based in part on his cross-examination of witnesses. The illustrations given by the Tribunal to support these findings were those identified in the HCCC’s submissions (at [556]-[558]). Similarly, the Tribunal’s findings (at [638]) on the appellant’s propensity to misinterpret innocent incidents or mistakes reflected very closely the HCCC’s submissions on the point (at [61(c)], [561]).
The Tribunal found that the appellant had presented to the Tribunal as “garrulous and over-inclusive”, an impression consistent with that obtained by two of the psychiatrists who had examined him (at [600], [667(c)]). This point does not appear to have been made specifically in the HCCC’s submissions. However, the evidence of the psychiatrists addressed the appellant’s alleged garrulousness and over-inclusiveness. In any event, the Tribunal ultimately placed no reliance on this aspect of the appellant’s behaviour in finding that he suffered from an impairment.
I have set out the warning given by the Deputy Chairperson in his judgment of 5 May 2008 and his expectation that counsel for the HCCC would inform the Tribunal of the in-court conduct upon which it relied at a time when the appellant could still bring forward evidence (see [249] above). The HCCC’s written submissions were provided to the Tribunal and the appellant before closing addresses, but after the evidence had closed. Nonetheless, the Deputy Chairperson had specifically stated on 5 May 2008 that the appellant would be at liberty to call evidence or make submissions in response to any submissions by the HCCC pointing to in-court behaviour as indicative of an impairment. It was therefore clearly open to the appellant, if he wished, to re-open his case to adduce evidence on the issues identified by the HCCC. As his submissions took four days, there was ample opportunity for him to consider whether he wished to take that course. He did not do so.
It may have been preferable for the Tribunal to have reminded the appellant of the precise terms of the judgment of 5 May 2008 and expressly advised him of his entitlement to adduce further relevant evidence if he wished. However, I do not think that the absence of any such reminder or advice involved a denial of procedural fairness. The appellant had been clearly told of the situation on 5 May 2008. The appellant had the opportunity to consider the HCCC’s written submissions relating to his in-court behaviour and to determine what response he wished to make. If there was any doubt in his mind as to whether he could call further evidence (none being expressed to the Tribunal), he would have been made aware by the HCCC’s application to adduce further evidence during the appellant’s own submissions that either party could apply to re-open its or his case.
It is also important to note that the appellant did not seek to tender evidence on the appeal suggesting that he did not appreciate that he could have applied to adduce further evidence if he wished to do so. Indeed, he made no such suggestion in his lengthy submissions on the appeal. There is therefore no basis in the materials before this Court to infer that he was unaware of his entitlement, nor that he had been misled by the absence of a reminder that he could adduce further evidence, if he wished, in relation to his in-court behaviour.
For these reasons, Ground 3 fails.
Other Complaints
The appellant made many other complaints. In my opinion none has substance. I mention briefly some of the contentions made in the appellant’s oral submissions.
The appellant submitted that Dr Anderson should not have sat on the Tribunal. However, the appellant was specifically asked on the first day of the hearing whether he wished to make an application concerning Dr Anderson and he declined to do so.
The appellant asserted that Dr Allnutt was not qualified to express the opinions he did. But the assertions were not supported by any evidence adduced at the Tribunal and were contradicted by the evidence accepted by the Tribunal.
The appellant complained that he had been denied the opportunity to call character witnesses, but accepted that the Deputy Chairperson had never refused to allow such evidence to be called. In fact, all the Deputy Chairperson did was to alert the appellant to the likelihood that character evidence would not count for a great deal unless the character witness was aware of the allegation against the appellant.
The appellant complained that the Tribunal imposed tight constraints on him in the presentation of his case. In fact, as I have explained, the appellant repeatedly breached or ignored directions made by the Tribunal. In particular, despite being given many indulgences, he repeatedly failed to comply with directions for the filing of witness statements and other documents. Any difficulties he may have experienced were of his own making. As the appellant remarked on Day 28 of the hearing, when he was given yet another indulgence:
“I’m not very good at this, doing doing documentation stuff … you give me three years I will still be late Okay.”
The appellant contended that the Tribunal had reasoned by analogy from cases involving allegations of sexual misconduct or criminal behaviour against medical practitioners. This contention was based on a misapprehension as to the use made by courts of precedents. The fact that the Tribunal quoted or cited passages from earlier decisions does not imply that it regarded the facts of the earlier cases as equivalent to those of the present case.
Many of the other submissions made by the appellant raised, at best, only complaints about findings of fact, such as his contention that the Tribunal should not have accepted Dr Allnutt’s evidence. Others were founded on misconceptions, such as a claim that the proceedings somehow infringed the principle of double jeopardy. None had any substance.
ORDERS
For the reasons I have given, both the appeal under s 90 of the Act and the application for relief under s 69 of the SC Act should be dismissed. The appellant should pay the HCCC’s costs of both the appeal and the application for relief under s 69 of the SC Act.
The non-publication order made by the Tribunal on 28 April 2008 should be amended, pursuant to the power conferred on this Court by s 91(1)(b) of the Act, to the extent necessary to ensure that it does not prevent publication of the names of any witness, complainant or medical practitioner:
in the transcript of proceedings in this Court;
in the judgment of this Court; and
in any report or publication of the proceedings in this Court or of the judgment of the Court.
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LAST UPDATED:
19 August 2010
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