Lindsay v Health Care Complaints Commission - [2005] NSWCA 356

No judgment structure available for this case.

CITATION:
Lindsay v Health Care Complaints Commission [2005] NSWCA 356

HEARING DATE(S):
6 September 2005

JUDGMENT DATE:

8 November 2005

JUDGMENT OF:
Mason P at 1; Hodgson JA at 2; Hunt AJA at 4

DECISION:
1. The appeal is allowed in part; 2. The appeal against the Medical Tribunal’s decision refusing to grant a stay of proceedings is dismissed; 3. The appeal against the Tribunal’s decision upholding the complaints against the appellant in relation to his medical records concerning Patients A and B is dismissed; 4. The appeal against the Tribunal’s characterisation of the appellant’s failure to provide Patient A with a copy of his pathology results as unsatisfactory professional conduct is upheld, and the complaint against the appellant in relation to his conduct concerning Patient A is to that extent dismissed; 5. The Tribunal’s decision dismissing the complaint against the appellant in relation to his conduct otherwise than in relation to his medical records concerning Patient B is confirmed; 6. The appeal against the Tribunal’s finding that the appellant be severely reprimanded in relation to his medical records concerning Patients A and B is dismissed; 7. The following audit condition on the appellant’s registration as a medical practitioner is imposed pursuant to s 61(1)(c) of the Medical Practice Act 1992 in substitution for that imposed by the Tribunal:; Dr Lindsay is to continue to submit to a random audit of his medical records by the person or persons already nominated by the New South Wales Medical Board to monitor his compliance with Schedule 2 of the Medical Practice Regulation 2003 as required by the Board. Dr Lindsay is to continue to authorise the said person or persons to prepare for the Board a report of his/her findings. Dr Lindsay is to meet all costs associated with the audit programme; 8. The following supervision condition on the appellant’s registration as a medical practitioner is imposed pursuant to s 61(1)(c) in substitution for that imposed by the Tribunal:; Dr Lindsay is to accept supervision by the person already nominated by the Medical Board to provide support and to monitor Dr Lindsay’s keeping of medical records for his patients. The supervisor is to provide supervision to the third level nominated in the Board’s policy PCH 7.1 dated August 2002. The costs of such supervision and reporting to the Board at least annually is to be borne by Dr Lindsay. It is an element of this condition that Dr Lindsay cooperate fully with his supervisor; 9. The appeal against the costs order made by the Tribunal is upheld. The Commission is ordered to pay 75% of the appellant’s costs in the Tribunal, such costs to include all the costs thrown away as a result of the various amendments made to the complaints by the Commission; 10. The appellant is ordered to pay 60% of the Commission’s costs of the appeal.

CATCHWORDS:
Medical Tribunal - complaint of unsatisfactory professional conduct - material showing that conduct was part of a pattern and not isolated - other conduct not the subject of a complaint before the Tribunal - material relevant to orders to be made if conduct complained of established to be unsatisfactory professional conduct - material irrelevant to characterisation of conduct as unsatisfactory professional conduct - error of law by Tribunal in taking other conduct into account when characterising conduct as unsatisfactory professional conduct. - Medical Tribunal - power of Supreme Court on appeal to make such order as it thinks fit when error of law established - need for caution when differing from specialist tribunal as to how conduct should be characterised. - Medical Tribunal - jurisdiction of Tribunal to stay proceedings before it where an abuse of process considered - approach to be taken (assuming jurisdiction). - Medical Tribunal - jurisdiction of Supreme Court to stay proceedings before Tribunal where an abuse of process considered - approach to be taken.

LEGISLATION CITED:
Medical Practice Act 1992
Medical Practitioners Act 1938
Supreme Court Act 1970
Medical Practice Regulation 1998

CASES CITED:
Bannister v Walton (1993) 30 NSWLR 699
Briginshaw v Briginshaw (1938) 60 CLR 336
Daskalopoulos v HCCC [2002] NSWCA 200
DPP v Shirvanian (1998) 44 NSWLR 129
Gill v Walton (1991) 25 NSWLR 190
Green v United States 355 US 184 (1957)
Grassby v The Queen (1989) 168 CLR 1
HCCC v A Medical Practitioner [2001] NSWCA 158
HCCC v Litchfield, Court of Appeal, 8 August 1997, unreported
Herron v McGregor (1986) 6 NSWLR 246
Herron v Sheahan, Supreme Court (Maxwell J), 29 April 1987, unreported
House v The King (1936) 55 CLR 499
Jago v District Court (NSW) (1989) 168 CLR 23
Lindsay v Health Care Complaints Commission [2004] NSWCA 222
Pillai v Messiter [No 2] (1989) 16 NSWLR 197
Qidwai v Brown [1984] 1 NSWLR 100
Rejfek v McElroy (1965) 112 CLR 517
Sabag v HCCC [2001] NSWCA 411
Sinha v HCCC [2001] NSWCA 206
Walton v Gardiner (1993) 177 CLR 378
Winagaratne v HCCC [2000] NSWCA 204
XD v Johnson (2002) 6 VR 372

PARTIES:
Dr David Charles Lindsay (Appellant)
Health Care Complaints Commission (Respondent)

FILE NUMBER(S):
CA 40756/04

COUNSEL:
D F Jackson QC / R D Marshall (Appellant)
C E Adamson SC / S A Beckett (Respondent)

SOLICITORS:
Kelvin Solari (Appellant)
Karen Mobbs (Respondent)

LOWER COURT JURISDICTION:
Medical Tribunal of New South Wales

LOWER COURT JUDICIAL OFFICER:
Judge Freeman, Dr D Glenn, Dr J Kendrick, Ms J Houen

CA 40756 of 2004

MASON P
HODGSON JA
HUNT AJA

Tuesday 8 November 2005

LINDSAY v HEALTH CARE COMPLAINTS COMMISSION

Judgment

1 MASON P: I have had the benefit of reading in draft the reasons of Hunt AJA. I agree with them, save that I wish to reserve my views on the issue of the Medical Tribunal’s power (or duty) to stay proceedings for abuse of process.

2 HODGSON JA: I agree with Hunt AJA.

3 I would add that, in my opinion, the power of the Tribunal under s.61(1)(a) of the Medical Practices Act to “caution or reprimand the person” authorises the Tribunal to issue to the person a form of words, the precise content of which can be determined by the Tribunal, so long as the form of words does truly constitute either the cautioning or reprimanding of the person. Accordingly, in my opinion, an order “that [the person] be severely reprimanded” is within that power.

4 HUNT AJA: The Appellant (Dr David Charles Lindsay) appeared before the Medical Tribunal (“Tribunal”) to answer a complaint of unsatisfactory professional conduct as a registered medical practitioner made by the Heath Care Complaints Commission (“Commission”). So far as is relevant to these present proceedings, unsatisfactory professional conduct of a registered medical practitioner is defined by s 36(1)(a) of the Medical Practice Act 1992 as:

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.

5 The Further Amended Complaint on which the Tribunal acted charged the appellant with having been:

… guilty of unsatisfactory professional conduct within the meaning of s 36 of the Act, in that the practitioner has demonstrated a lack of adequate knowledge, skill, judgment or care in the practice of medicine.

Detailed particulars of this complaint were given, to which references are made later in this judgment.

6 By agreement, the hearing of the complaint in the Tribunal was in two parts. The first part consisted of the evidence supporting the particulars given of the appellant’s conduct, after which the Tribunal made findings as to whether those particulars had been made out. The second part of the hearing consisted of submissions as to whether the conduct found to have been established amounted to unsatisfactory professional conduct, and evidence and submissions as to what disciplinary or other powers should be exercised by the Tribunal as a consequence of a finding that the conduct should be so characterised.

7 The Tribunal correctly identified the burden of proof relevant to the proceedings as requiring a comfortable satisfaction on the balance of probabilities, having regard to (a) the gravity and importance of the issues to be decided, and (b) the possible consequence to the medical practitioner that a finding would be made that he or she had been guilty of unsatisfactory professional conduct: Briginshaw vBriginshaw (1938) 60 CLR 336 at 360-363; Rejfek v McElroy (1965) 112 CLR 517 at 521; Bannister v Walton (1993) 30 NSWLR 699 at 711-712.

The evidence for the first stage and the findings of fact

8 The complaint and its particulars identified two patients whom the appellant had treated during 2000 in the Mid City Skin Cancer Clinic, which he had operated for some years in Sydney. These patients have been identified only as Patient A and Patient B.

9 When first consulting the appellant, Patient A expressed concern about a mole on his lower left leg. The appellant advised him that this mole had to be excised, and Patient A consented to that operation being carried out there and then. After the operation, the appellant assured Patient A that he had “got it out” and that the patient would have “no further problems with it”. The lesion excised was sent to a pathologist for examination, who reported that it was a malignant melanoma. It was the Commission’s case that the appellant failed to inform Patient A that such a report was to have been obtained. The contents of that report were discussed at a subsequent consultation, when the appellant informed Patient A that further excision was necessary. It was the Commission’s case that the appellant had failed to forewarn Patient A that further surgery may be required. Patient A asked the appellant why a further excision was necessary in the light of the assurances he had been given after the earlier procedure. The appellant told him that the further excision was required “under the rules”, and that neither of them had any say in the matter. The appellant subsequently told the Commission he had informed Patient A that, although the pathology report confirmed that the mole had been completely removed, the further excision was required so that “an adequate margin is achieved” to ensure a 100% success. The Tribunal commented that, if Patient A was severely irrational, dangerous and obsessed about the adverse implications he saw in the pathology report (as the appellant had claimed), this explanation could barely be thought to have been intelligible to him.

10 Patient A declined to have the second procedure done immediately and he told the appellant that he would call later to arrange a time, although he said in evidence that he had had no intention of doing so. In a follow-up call by the appellant, Patient A’s brother informed him that the patient would not be having any further treatment. It was the Commission’s case that the appellant failed at this stage to suggest that the patient should obtain a second opinion. (The charge was, however, that he had failed to refer the patient to a specialist.) Patient A did nevertheless return the appellant’s call. It was the Commission’s case that the appellant told the patient during that conversation that, if he did not have a second operation, he would die, notwithstanding that (it was asserted) there was no indication that the patient had a life-threatening condition. The appellant told Patient A that he would not receive a copy of the pathology report. There may also have been a reference by the patient during this conversation to his intention to consult another doctor. Patient A subsequently appeared at the appellant’s clinic and asked to see his pathology report. The appellant gave evidence to the Tribunal that he informed his office manager, who had offered to make a copy of the report for the patient, that Patient A was not to be given such a copy. Patient A unsuccessfully attempted to seize the report from the appellant.

11 The appellant and Patient A each gave different versions of this incident. The Tribunal described both versions as unconvincing, but said that doubtless there was a physical incident initiated by Patient A. The Tribunal concluded that the only thing to be said with certainty was that the appellant did not give Patient A a copy of the pathology report.

12 Evidence was given by a specialist surgeon that, when a patient asks to see a report of this nature, he preferred to explain the contents of the report to the patient rather than provide him with a copy and, if the patient was adamant in demanding a copy of the report, he would send the patient to the referring general practitioner for that doctor to decide whether a copy of the report should be provided. Evidence was also given by a general practitioner that a patient who demands a copy of such a report will do better if the copy is provided, together with an explanation of that report in “excruciating detail”. The general practitioner said that a respectable body of opinion would be critical of a doctor’s failure to provide a copy of such a report unless the patient suffered from an intellectual disability or a florid paranoid schizophrenia. The appellant had been consulted by Patient A directly, without referral by a general practitioner, and Patient A had no such intellectual or mental disability.

13 The appellant subsequently instructed his solicitor to send a copy of the pathology report to Patient A. In the meantime, he wrote a letter to Patient A saying:

It was the Commission’s case that this letter was couched in inappropriate terms.

14 Patient A was not an ideal witness. His behaviour when speaking to the appellant was described by the Tribunal as having been aggressive at times and as being affected at one stage by an ill-founded belief that the excision the appellant had performed was unnecessary. Patient A was described by the Tribunal as having a flawed recollection of the conversations he recounted, as unreliable in other respects and as unconvincing on some issues. The Tribunal stated that it had difficulty in accepting everything Patient A said in his evidence.

15 The appellant was also criticised. The Tribunal found that he had difficulty in communicating with his patients and that his extremely rigid personality and his conviction in the rectitude of his own practices and behaviour had led him to react badly to any criticism, expressed or implied. The Tribunal found that the appellant had quite wrongly sought to manipulate Patient A, and that some of the appellant’s evidence was unconvincing.

16 The particulars of the complaints concerning Patient A and the findings in relation to those particulars are as follows:

PATIENT A

17 Patient B was an elderly lady, and she complained that the appellant had operated on her without explanation, without warning and without her permission. When she asked what he was doing, he told her to be quiet. Patient B, however, gave contradictory statements to the Commission, and the Tribunal described her recall of the relevant events as “hopelessly astray” and “deeply confused”, and her evidence as either unreliable or not really credible. The Tribunal was not satisfied that any of the particulars concerning Patient B had been made out.

18 The particulars of the complaints relating to Patient B and the findings in relation to those particulars are therefore as follows:

PATIENT B

19 In addition to those matters, the Commission also identified in the particulars of its complaint the appellant’s failure to maintain adequate and legible records in relation to both Patients A and B. This failure was identified as a particular of conduct alleged to have been significantly below the standard reasonably expected of the appellant (see par [4] supra), rather than as a contravention of the regulations relating to the maintenance of records. A contravention of the regulations would have amounted by itself to unsatisfactory professional conduct as a registered medical practitioner, as the definition of unsatisfactory professional conduct in s 36(1) includes “Any contravention by the practitioner (whether by act or omission) of a provision of this Act or the regulations”. Evidence of a breach of those regulations is nevertheless relevant to proof of the complaint made in the present case insofar as it related to the appellant’s judgment and exercise of care.

20 The regulations in force in 2000, when the relevant records were made by the appellant, were those in the Medical Practice Regulation 1998. Schedule 2 of that Regulation required a registered medical practitioner to record any information known to the practitioner which was relevant to his or her diagnosis or treatment of the patient, including the patient’s medical history, the results of any physical examination of the patient, information obtained concerning the patient’s mental state, the results of any tests performed on the patient and information concerning allergies or other factors which may require special consideration when treating the patient. The record must include notes as to any information or advice given to the patient in relation to any medical treatment proposed by the practitioner and any written consent given by the patient to any such medical treatment or medical or surgical procedure proposed by the practitioner. The Regulation provided that the record must include sufficient information concerning the patient’s case to allow another registered medical practitioner to continue management of the case. The Regulation permitted abbreviations and shorthand expressions to be used in the records only if they were generally understood in the medical profession in the context of the patient’s case or generally understood in the broader medical community.

21 At the end of the evidence, the appellant sought a stay in relation to the charges concerning the adequacy of his records on the basis that the proceedings were oppressive and represented a species of double jeopardy. The basis of the stay was that the adequacy of the appellant’s record-keeping had already been investigated by the Tribunal (differently constituted) in proceedings which related to another patient identified as Patient O. (It was not suggested that the details of the complaint in those proceedings were made known to the Tribunal hearing the complaints concerning Patients A and B until after it had made its findings in relation to the appellant’s conduct concerning Patients A and B.) The application for a stay was refused by the Tribunal. That refusal is the subject of the appellant’s first ground of appeal, which is dealt with later in this judgment (at par [68] et seq, infra). I deal first with the second ground of appeal, which is directed to the errors alleged to have been made by the Tribunal in characterising the appellant’s conduct as unsatisfactory professional conduct. By dealing with the second ground of appeal first, the context in which the stay was refused will become clearer.

22 In its first determination, the Tribunal found that the standard of the appellant’s record-keeping in relation to Patients A and B was “entirely inadequate”, having earlier described the records as “grossly deficient”, and that the conduct identified by the particulars had been made out. The particulars and the findings in relation to those particulars are as follows:

PATIENT A

PATIENT B

23 Having made these findings (including the finding that the appellant had failed to provide Patient A with a copy of his pathology results when he requested them: par [16] supra), the Tribunal adjourned the proceedings to enable the parties to provide written submissions as to whether those findings amounted to unsatisfactory professional conduct and, if so, what disciplinary or other powers should be exercised consequent on such a finding.

The evidence for the second stage and the objection thereto

24 I have already referred to the two stages of the hearing before the Tribunal. The argument in relation to what findings should be made took place at the end of the first stage. Counsel for the Commission indicated at the conclusion of the argument that, after those findings had been made, material would be tendered regarding another complaint against the appellant (heard by the Professional Standards Committee) relating to the appellant’s records concerning Patient O. This material was to include the findings of the Committee in relation to that complaint and the decision on appeal from those findings to the Tribunal (differently constituted). I refer in more detail to that material shortly (par [30] infra). At this stage, it is sufficient to say that the material disclosed that the appellant had had difficulties in his relationship with Patient O, and that audits of his then current record-keeping had been unfavourable.

25 Objection was taken on behalf of the appellant to this material being seen by the Tribunal before it considered whether the appellant’s conduct relating to Patients A and B which it found to be proved should be characterised as unsatisfactory professional conduct, an issue on which argument had yet to take place. It was conceded by the appellant that regard could be had to that material when the Tribunal was determining what action should be taken in the event that this was the characterisation the Tribunal made. That concession was correctly made, as such material was relevant as to (i) whether or not the appellant’s conduct in relation to his records of Patients A and B was accidental and isolated or deliberate and part of a pattern of disregard by the appellant of his obligations, and (ii) whether or not conditions which had been imposed on the appellant’s registration in the proceedings relating to Patient O needed to be strengthened.

26 But the material relating to Patient O was clearly irrelevant to the characterisation to be given to the appellant’s conduct relating to Patients A and B. The position would have been different had all three complaints been before the Tribunal to be dealt with at the same time, when the cumulative effect of all of the material could have been taken into account when considering whether that conduct should be characterised as unsatisfactory professional conduct. That, too, was correctly conceded by the appellant. The Commission, however, had elected to proceed against the appellant in relation to his conduct concerning Patient O separately from his conduct concerning Patients A and B, thus denying itself the advantage of a cumulative approach.

27 It was made very clear to the Tribunal by counsel for both the appellant and the Commission that the material concerning Patient O should be considered by it only in relation to the orders which would be sought in the event that the conduct in relation to Patients A and B was characterised as unsatisfactory professional conduct based on the material produced so far. Both parties stated that the material should not be considered by the Tribunal in relation to the characterisation itself.

28 Two interrelated suggestions were made to the Tribunal by counsel. The first was that this material might be sealed until the issue of “liability” was determined, being clearly enough a reference to the issue of characterisation of the findings to be made. The second suggestion was that, so that no confusion could occur, there should be two further hearings, one as to characterisation and another as to what powers should be exercised if the characterisation for which the Commission contended had been made out.

29 In answer to these suggestions, the Tribunal raised a number of procedural difficulties arising out of the unavailability of the Deputy Chairman (Judge Freeman) because of his other duties in the District Court. It was finally agreed that there would be only one further hearing, which would deal with the two issues of characterisation and what action should be taken, if any. However, it remained clear from what was said that counsel for both parties were agreed that the evidence concerning Patient O should not be considered by the Tribunal in relation to the characterisation to be made.

30 The material was tendered by the Commission at the resumed hearing. It included the findings of the Professional Standards Committee that the appellant had had similar difficulties with Patient O on an interpersonal basis, together with the finding by the Professional Standards Committee that the appellant had failed to maintain medical records of his consultations with Patient O, the determination that such conduct was unsatisfactory professional conduct, the conditions which the Committee imposed on the appellant’s registration, including a regular review of his records of all surgical procedures and a random audit of all medical records by the New South Wales Medical Board, the rejection by the Tribunal (as then constituted) of the appellant’s appeal, its reprimand of the appellant, the Tribunal’s confirmation of the conditions imposed (subject to some minor agreed variations) and the reports of the auditor in relation to the appellant’s then current record-keeping . At that time, an application by the appellant to this Court for relief in the nature of certiorari against that determination had not been disposed of. The application had been made on the basis of claimed procedural unfairness, and it has since been dismissed: Lindsay v Health Care Complaints Commission [2004] NSWCA 222.

31 All of this material was new to the Tribunal in the present proceedings. It is the appellant’s case that it is apparent from the Tribunal’s reasons for characterising the appellant’s conduct in all three particulars which had been made out as unsatisfactory professional conduct that, contrary to the joint approach of the parties before it, the Tribunal had indeed taken this new material into account in making that determination. In relation to the pathology report incident, the Tribunal said:

32 In relation to the appellant’s medical records, the Tribunal said:

Regulation

so as to allow another medical practitioner to continue managing the patient’s case

33 The Tribunal ordered that the appellant be severely reprimanded for his failure to keep medical records “even approaching the minimum required” in relation to Patients A and B. It concluded that some revision was needed of the conditions previously imposed on the appellant’s registration following the hearing into the complaint in relation to Patient O. The Tribunal reimposed the condition that the appellant submit to a random audit of his medical records, and imposed a further condition in these terms:

Dr Lindsay is to accept supervision by a person nominated by the [Medical] Board to provide support and to monitor Dr Lindsay’s capacity to practise medicine safely. The supervisor is to be appointed within six months and to provide supervision to the third level nominated in the Board’s policy PCH 7.1 dated August 2002. The costs of such supervision and reporting to the Board at least annually is to be borne by Dr Lindsay. It is an element of this condition that Dr Lindsay cooperate fully with his supervisor.

The third level of supervision relates to the medical practitioner’s competence, and it is the least onerous which could be imposed. It is conducted off the practitioner’s premises and usually by telephone.

Second ground of appeal

34 The subject of the appellant’s second ground of appeal is the regard paid by the Tribunal to the material relating to the proceedings concerning Patient O (described in par [30] supra) when characterising the appellant’s conduct in all three particulars as unsatisfactory professional conduct. The appellant contends that the Tribunal erred in taking that material into account.

35 Counsel for the Commission conceded that the Tribunal did in fact take this material relating to into account in characterising all three particulars as unsatisfactory professional conduct and that, in doing so, the Tribunal failed to accord procedural fairness to the appellant and thus fell into error (Written submissions, pars 20-23). That concession is correct. In relation to the pathology report incident, the Tribunal changed its express finding that the appellant’s conduct did not justify a finding of unsatisfactory professional conduct to a finding that it did justify such a finding, and the Tribunal made it very clear that it changed its mind because of the additional material concerning Patient O (see pars [50]–[51] infra). In relation to the medical records, the Tribunal expressly took the additional material into account in disbelieving evidence which the appellant had given before it in relation to his records (see par [57] infra). Its inability to do so in these proceedings is another necessary consequence of the Commission’s election to proceed against the appellant in two separate proceedings.

36 In my opinion, the error made by the Tribunal in taking this additional material into account went far beyond procedural unfairness. The error was one of law in taking into account in determining an issue material which was never relevant to that issue, as both the appellant and the Commission had agreed and submitted to the Tribunal. The Commission’s written submissions implicitly suggest that, had the Tribunal afforded the appellant the opportunity to address on this additional material, there would have been no procedural unfairness. The only address which could have been made in relation to the additional material was to remind the Tribunal of the common approach already indicated by both parties that it could be relevant solely in relation to what orders should be made in the event that the conduct was characterised as unsatisfactory professional conduct without reference to that material (see pars [25]–[27] supra). The error was a clear error of law, not of mere procedural unfairness.

37 The usual order on appeal where such an error of law has been established would be to set aside the finding of unsatisfactory professional conduct, the severe reprimand and the additional condition imposed on his registration as a medical practitioner. That is what the appellant seeks.

Notice of contention

38 By way of a notice of contention, the Commission has submitted that this Court should now decide for itself that, even disregarding the additional material wrongly taken into account by the Tribunal, the conduct contained in the particulars which the Tribunal found had been made out should be characterised as unsatisfactory professional conduct, and accordingly that this Court should dismiss the appeal but vary the further condition imposed in a way to which reference is made later (see par [93] infra).

39 Such a course of action proposed by the Commission requires a brief examination of ss 60, 61(1), 90(1) and 91(1) of the Medical Practice Act which, so far as is here relevant, are in the following terms:

60 Powers may be exercised if complaint proved or admitted

A Committee or the Tribunal may exercise any power or combination of powers conferred on it by this Division if it finds the subject-matter of a complaint against a person to have been proved or the registered medical practitioner who is the subject of the complaint admits to it in writing to the Committee or Tribunal.

61 General powers to caution, reprimand, counsel etc

(1) A Committee or the Tribunal may do any one or more of the following:

(a) caution or reprimand the person,
…
(c) direct that such conditions, relating to the person’s practising medicine, as it considers appropriate be imposed on the person’s registration,
…
(f) order that the person seek and take advice, in relation to the management of his or her medical practice, from such persons as are specified by the Committee or Tribunal.
…

90 Appeal against Tribunal’s decisions and actions

91 Powers of Court on appeal

40 These sections have been considered by this Court on a number of occasions. A distinction has been drawn between (a) the jurisdiction of this Court where the challenge is to findings made by the Tribunal which lead to the ultimate finding that the complaint has or has not been proved, and (b) its jurisdiction where the challenge is to the powers exercised by the Tribunal as a consequence of the complaint being proved.

41 Where the challenge is to the findings of the Tribunal which lead to an ultimate finding that the complaint has or has not been proved, this Court has decided that they may be challenged only where there has been an error of law: HCCC v A Medical Practitioner [2001] NSWCA 158 at [42]–[43]; Sinha v HCCC [2001] NSWCA 206 at [25], [26]; Sabag v HCCC [2001] NSWCA 411 at [5]–[6]; Daskalopoulos v HCCC [2002] NSWCA 200 at [37], [57]. Those cases are consistent with, and indeed follow, a decision relating to the previous statute, the Medical Practitioners Act 1938, where the appeal provisions were to the same effect as ss 90 and 91 of the current Act: Bannister v Walton at 734. (See also Winagaratne v HCCC [2000] NSWCA 204 at [57]).

42 The same decisions state that a challenge to the powers exercised by the Tribunal as a consequence of the complaint being proved is not restricted to errors of law, as the terms of s 91(1)(b) make clear. As the exercise of those powers by the Tribunal is discretionary, however, an appeal will succeed only if it is shown that the discretion miscarried, in accordance with House v The King (1936) 55 CLR 499 at 504-505; Sabag v HCCC at [7].

43 HCCC v A Medical Practitioner is the only one of those cases in which this Court did substitute its own characterisation of the medical practitioner’s conduct for that determined by the Tribunal (at [42]). In that case, the Tribunal dismissed a complaint of unsatisfactory professional conduct based on an error made by the medical practitioner in prescribing an excessive dosage of a morphine-based drug for an elderly patient (ten times the amount he had intended), leading to her death. The Tribunal held that the practitioner had been negligent in the error he made, but that it was “mere negligence”, and that, whilst mere negligence in a prescribing error may constitute unsatisfactory professional conduct, it did not, in the particular circumstances in which this error was made, demonstrate that the practitioner had exhibited a lack of adequate knowledge, skill, judgment or care in the practice of medicine.

44 This Court held that the Tribunal had failed to examine the quality of the prescribing error, and had taken into account an irrelevant factor in declining to characterise the conduct as unsatisfactory professional conduct. An error of law having been established, this Court made a finding that the conduct should be characterised as unsatisfactory professional conduct as that was the only finding possible on the evidence (at [43]).

45 There are cases in which this Court has set aside findings by the Tribunal characterising the conduct of medical practitioners in a particular way — for example, Qidwai v Brown [1984] 1 NSWLR 100 at 102 (departure from an accepted practice is not necessarily misconduct in a professional respect); Pillai v Messiter [No 2] (1989) 16 NSWLR 197 at 200, 208-210 (neither mere professional incompetence nor a deficiency in practice constitutes misconduct in a professional respect). In each case, it was a question of law as to whether there was evidence to support the characterisation made by the Tribunal. That is not the same as this Court determining for itself whether particular conduct constitutes professional misconduct or unsatisfactory professional conduct, where the particular conduct may or may not do so according to the particular circumstances in which the conduct occurred.

46 In my opinion, this Court would have to act very cautiously in making its own characterisation of conduct established to the satisfaction of the Tribunal where there was room for different views on the subject. The Medical Tribunal is a specialist tribunal, being constituted for the purpose of conducting inquiries by a District Court judge, two registered medical practitioners and one lay person (Medical Practice Act, ss 147–148). This Court is not in the position to apply such medical expertise, although there may perhaps in some cases be a clear and unanimous view expressed by medical experts who gave evidence in the proceedings before the Tribunal on which this Court could act.

47 The appellant has argued that the course proposed by the Commission should not be followed in this case because, he says, the Tribunal has clearly indicated (perhaps unusually) that, but for the additional material it wrongly took into account, it would not have characterised the appellant’s conduct as unsatisfactory professional conduct. As seen through the prism of the Tribunal’s eyes at the time, the appellant contends, the only proper order is to reject the complaint that this conduct was unsatisfactory professional conduct. The Commission disputes that this is the proper interpretation of what the Tribunal said.

48 It appears to me that the logical way to approach the Notice of Contention in the present case is to consider first the argument by the appellant that the Tribunal had already made clear its original view as to characterisation — that is, the view it had formed before learning of the additional material in relation to Patient O which was irrelevant to that issue.

The pathology report incident

49 In its first determination — before learning of the additional material relating to Patient O — the Tribunal was critical of the appellant in relation to his refusal to provide Patient A with a copy of the pathology report, stating that the refusal resulted from his wish to punish the patient and to maintain his “position of power” over him. The Tribunal concluded that this conduct attracted “criticism of a mild degree”.

50 In its second determination — after learning of the additional material relating to Patient O — the Tribunal noted that it had been common ground in the submissions of the parties before this additional material had been produced that the appellant’s failure to provide Patient A with a copy of the pathology report did not by itself justify a finding of unsatisfactory professional conduct. It expressly made a finding in those terms. The Tribunal went on to say that it had been prepared to give the appellant the benefit of the doubt in relation to the pathology report incident because Patient A presented with a reasonably difficult personality in the circumstances, and he had a demonstrably flawed recollection of the events. Then, notwithstanding the “criticism of a mild degree” it had earlier said that this incident attracted, the Tribunal said that:

… on the basis of this evidence [that is, the only evidence which the Tribunal was entitled to take into account] the Tribunal felt unable to come to that degree of satisfaction which would support a finding of misconduct or even unsatisfactory conduct.

supra

51 The Tribunal then wrongly turned to consider the additional material relating to Patient O on the issue of characterisation and said that, in light of that material, this particular incident relating to the pathology report was but an example of a more widespread failure by the appellant to appreciate the emotional and intellectual requirements of his patients and that, having now had access to this new material, it had a real concern about the similarities demonstrated in that material when compared to the appellant’s version in the present proceedings.

52 Although the Tribunal did not anywhere expressly characterise the failure to give Patient A a copy of the pathology report as unsatisfactory professional conduct, and although it imposed the severe reprimand only in relation to the appellant’s failure to keep medical records, it must necessarily have made such a characterisation in relation to the pathology report incident, as it later proceeded to consider whether a supervisor should be appointed by the Medical Board to assist the appellant “in both dealing with patients with whom he has difficulty and in recording properly those patients’ history and treatment”. It also imposed a condition on the appellant’s registration requiring him “to accept supervision by a person nominated by the Board to provide support and to monitor [his] capacity to practise medicine safely” (see par [33] supra). Such a condition could have been imposed only if the complaint concerning the pathology report incident had been proved (Medical Practice Act, ss 60-61) — that is, if the refusal to provide the report had been characterised as unsatisfactory professional conduct. Both parties to the appeal proceeded on the basis that such a characterisation had been made.

53 It is, in my opinion, clear beyond any doubt that, had the Tribunal not wrongly taken the additional material into account, it would have declined to characterise that conduct as unsatisfactory professional conduct, and that it would have dismissed the complaint so far as the pathology report incident was concerned. Counsel for the Commission conceded that, if that were this Court’s interpretation of what the Tribunal said, and in light of the concession made by the Commission before the Tribunal, it did not seek to have this Court substitute its own view as to the characterisation of this specific conduct.

54 The characterisation made by the Tribunal that the refusal to provide a copy of the pathology report was unsatisfactory professional conduct was wrong. It should therefore be set aside, and the complaint so far as the pathology report incident is concerned should be dismissed.

The appellant’s medical records

55 The position in relation to the appellant’s medical records requires a more detailed examination. The Tribunal made findings in its first determination that he failed to maintain adequate and legible medical records in relation to Patients A and B, and it expressed strong views concerning those records (to which reference is made in par [60] infra), but it expressed no specific view at that stage as to whether that conduct should or should not be characterised as unsatisfactory professional conduct.

56 Nor did the Tribunal expressly identify in its second determination any view it had formed of the appellant’s record-keeping before learning of the additional material the auditors had discovered concerning the appellant’s current record-keeping. However, the Tribunal did refer in many places to the different picture it had obtained of the appellant’s conduct to that which it had previously obtained. The issue between the parties on appeal is whether this additional material was taken into account by the Tribunal in making a characterisation of that conduct (which would have been erroneous) or only in relation to the orders to be made as a result of a characterisation of unsatisfactory professional conduct (which would have been appropriate: see par [25] supra).

57 In its second determination, after referring to the new view it had formed of the appellant’s “somewhat rigid” approach to medical practice so far as it impacted on relationships with his patients, the Tribunal said that it was evident that the appellant had “the same ‘blinkered’ approach” concerning the maintenance of adequate and legible medical records. It said that the information obtained in the audits had now shown that the evidence the plaintiff had given in the present proceedings in relation to his current keeping of records was “either deliberately untruthful or, at the least, completely out of touch with reality”. After referring to the findings of the auditor appointed in the proceedings concerning Patient O — that there was a nearly complete lack of legible and contemporaneous notes in the appellant’s clinical files and that his records were of “extremely poor” quality, posing a risk to both the appellant himself and his patients — the Tribunal said that the appellant had learnt little from the two audits which had taken place. It found that his medical records in relation to Patients A and B (which it had already described as “entirely inadequate” in its first determination) constituted unsatisfactory professional conduct.

58 Both parties focussed attention on the penultimate paragraph quoted in par [32] supra, which I quote again for convenience:

The fact that the records of Patients A and B were prepared in 2000 would ordinarily answer the case if it appeared that Dr Lindsay had completely reappraised his attitude on this aspect since that time. He has not. He continues to defend the indefensible. This, in the mind of the Tribunal, raises the question as to whether he may fairly be regarded as “impaired”.

The reference to continuing “to defend the indefensible” is to a statement made by the Tribunal in its first determination when dismissing the application made for a stay of proceedings in relation to the medical records, quoted in par [60] infra.

59 In order to understand what was intended by the passage quoted in the previous paragraph, it is necessary to consider the statements and findings made by the Tribunal in its first determination. These assist a determination as to whether the Tribunal had formed its view of the character of the appellant’s conduct before or only after learning of the additional information at the second stage hearing.

60 Having described the medical records kept by the appellant in relation to Patients A and B as “grossly deficient”, the Tribunal said:

Instead of attempting to defend the indefensible Dr Lindsay’s legal advisers took, on this aspect, a different tack. An application was made at the end of the evidence for the Tribunal to stay the proceedings in respect of these complaints, that is, to not proceed with the hearing on these matters on the basis that the proceedings were oppressive and represented a species of double jeopardy.

The Tribunal found that the standard of the appellant’s record-keeping , as illustrated by the notes in relation to Patients A and B, was “entirely inadequate”. It continued:

61 Equally important is the evidence which the appellant gave in relation to his record-keeping and which led to those findings. That evidence was clearly capable of supporting a finding that his conduct constituted unsatisfactory professional conduct. The regulation in force in 2000 is described in par [20] supra. In particular, it provided (as does the current 2003 regulation) that medical records must include sufficient information concerning a patient’s case to allow another registered medical practitioner to continue the management of the patient’s case. The applicant's evidence in relation to this requirement was instructive:

Look, an expert doctor — and we are talking about expert doctors, we are not talking about doctors who wander from practice to practice, or locum here there and there [ sic ] and dabble in everything. I’m talking about focussed doctors who dedicate to skin, dermatologists, plastic surgeons and doctors, just like me, who have been doing it for eleven, twelve years. One hundred per cent. We know what we are doing.
We keep records, we know what dates the patient came in and we keep the pathology file. We know 100 percent what we are doing. Why add to the confusion by adding information that’s not relevant to what you’re doing? I’ve got in my head, I’ve got a very good memory, I think — I have been told I have and I remember things and I know each intimate detail about the surgery. I remember things. I visualise the surgery I did. I mean, that’s my ability. You write notes according to what you need and people can’t invade your privacy as a professional to the point that they’re looking over your shoulder and saying ‘I don’t like your notes’. They don’t like it. I like it and it works for me and it has saved people’s lives. Okay? That’s why I do it, and if it’s in the interests of the safety of the patient and the care of the patient and that suits me, my personality type and how I order my world, then that’s how I do it .

He had earlier been asked:

sic

I’m saying any doctor who is qualified and competent who has reasonable capabilities and reasonable experience in this work, would know exactly what I have done and would know exactly what the guidelines are and the requirements of them in fulfilling those duties.

62 Those findings and that evidence lead me to the conclusion that the Tribunal had already formed a particularly serious view of the appellant’s conduct in relation to his medical records concerning Patients A and B before learning of the additional material. That was inevitable. It is against this background that the statement by the Tribunal in its second determination — that the fact that the records concerning Patients A and B were prepared in 2000 “would ordinarily answer the case” if it appeared that Dr Lindsay had completely reappraised his attitude to record-keeping since then — must be considered. This statement does not appear to me to have been necessarily directed to the characterisation of the appellant’s conduct. I shall explain why that is so.

63 The word “case” is obviously a reference to the Commission’s complaint, and not just to the appellant’s conduct, as the appellant conceded in this Court. That complaint by its terms included the characterisation of the appellant’s medical records concerning Patients A and B as constituting unsatisfactory professional conduct. The statement now under examination is, in my view, consistent with a view having been formed by the Tribunal — without reference to the additional information — that, had the defects occurred only in 2000, and if the appellant had learnt his lesson from the findings in the proceedings concerning Patient O, no order might have been made consequent on a finding that those defects in his 2000 records nevertheless constituted unsatisfactory professional conduct. Such a result of a finding of unsatisfactory professional conduct was open to the Tribunal: HCCC v A Medical Practitioner at [48]–[51].

64 I am not persuaded by the passage from the second determination that, but for the additional material it wrongly took into account, the Tribunal necessarily would have declined to characterise the appellant’s conduct as unsatisfactory professional conduct or that it had reached its conclusion that it should be so characterised only because it learnt of the additional information concerning the appellant’s medical records relating to Patient O. I do not accept the appellant’s argument that the Tribunal had made it clear that this was its earlier view. Accordingly, I would not be prepared to proceed on the assumption which the appellant has asked this Court to make — that, but for the additional material it wrongly took into account, the Tribunal would not have characterised the appellant’s conduct in relation to those records as unsatisfactory professional conduct.

65 The Tribunal nevertheless erred by taking that additional material into account, as the Commission has correctly conceded, and its finding of unsatisfactory professional conduct should therefore be set aside. Neither party sought to have the matter returned to the Tribunal for its reconsideration of the issue in light of this Court’s judgment. In the event that this Court did not accept the previous argument put by the appellant, both parties asked it to undertake its own characterisation of the conduct in question as sought by the Commission in its Notice of Contention. The appellant also accepted that this Court could take the findings and comments of the Tribunal (as a specialist tribunal) into account in its own characterisation of his conduct in relation to the medical records concerning Patients A and B.

66 The evidence given by the appellant demonstrates an arrogant refusal on his part to face up to the requirement in the Regulation that his records include sufficient information concerning a patient’s case to allow another registered medical practitioner to continue the management of the patient’s case. The reasons he gave were that he did not want others invading his privacy as a professional and that it suited his personality and how he ordered his world. The Tribunal described this attitude as indefensible in its first determination and it noted at that time that, despite the requirements of the Regulation, the appellant continued to claim that his records relating to Patients A and B were adequate. The Tribunal also, of course, had described those records as grossly deficient and entirely inadequate in its first determination.

67 I am satisfied that, in the light of that evidence and of those findings and comments by the Tribunal, the only logical conclusion is that the appellant was guilty of unsatisfactory professional conduct in relation to those records. I would therefore so characterise the appellant’s conduct, and substitute this Court’s finding for that of the Tribunal on this issue. I would accordingly uphold the appellant’s second ground of appeal in relation to the pathology report incident, but dismiss it in relation to his conduct concerning his medical records.

First ground of appeal

68 Before turning to the appeal against the orders made by the Tribunal, it is necessary to return to the appeal against the Tribunal’s refusal to stay the proceedings based on the two complaints relating to the appellant’s medical records concerning Patients A and B now that the context in which that refusal too place. The refusal is the subject of his first ground of appeal.

69 The basis of the application for a stay was that the Tribunal (differently constituted) had already investigated the adequacy of the appellant’s records in the earlier proceedings relating to Patient O. Conditions had been placed on the appellant’s registration as a medical practitioner requiring him to submit to a random audit of his medical records relating to all of his patients (described as “practice-wide”).

70 The sequence of events was that the complaint against the appellant in relation to his conduct concerning Patient O was made in April 2000. The complaint related to events which had taken place in 1998. It came before a Professional Standards Committee in March 2001. Such a Committee has the same jurisdiction and powers as the Medical Tribunal, except for the powers of suspense and deregistration (Medical Practice Act, ss 60-65). A Committee, however, ordinarily sits in the absence of the public (s 176), whereas the proceedings of the Tribunal are ordinarily open to the public (s 161). An appeal against a decision of a Committee lies to the Tribunal (ss 87-88). The Committee hearing the proceedings against the appellant gave its decision in July 2001, and the appellant’s appeal to the Tribunal against that decision was dismissed in November 2002. The complaint against the appellant in relation to his conduct concerning Patients A and B was made in April 2001. He had, however, been notified in January 2001 that the Commission had completed its investigation and that it proposed to make a complaint concerning, inter alia, his medical records relating to Patients A and B. The complaint related to events which were alleged to have occurred in February and April 2000. The complaint was amended on several occasions. It came on for hearing in the Tribunal in March 2004.

71 It was submitted that the inquiry into the quality of the appellant’s record-keeping in the earlier hearing would not be restricted to the medical records concerning Patient O. It was the appellant’s case that the Commission had decided to institute the present proceedings relating to his records concerning Patients A and B prior to the hearing of its complaint concerning Patient O, and that there was no good reason why the complaints concerning the records relating to Patients A and B could not have been dealt with at the same time as the complaint concerning his records relating to Patient O. It was submitted that a fresh allegation relating to the appellant’s conduct which took place prior to the hearing of the first complaint would not serve the purpose of disciplinary proceedings, as he had already been disciplined in those earlier proceedings.

72 The Tribunal’s findings leading to the refusal to stay the proceedings are set out in par [60] supra. Briefly, the Tribunal said that the appellant’s medical records relating to Patients A and B were “indefensible”, that the records were entirely inadequate and that it would be recreant to its duty to grant a stay and refuse to consider the evidence of these complaints.

73 Neither of the parties to the present appeal sought to dispute the jurisdiction of the Tribunal to grant a stay of the proceedings before it on the basis that the proceedings were an abuse of process. However, it is by no means self-evident that the Tribunal does have the power to do so. No authority has been cited which upholds the existence of such a power in the Tribunal. In Gill v Walton (1991) 25 NSWLR 190 at 195, reference was made by this Court, without demur, to the fact that the Tribunal constituted under the Medical Practitioners Act 1938 had stayed the proceedings against one doctor after this Court had stayed the proceedings against two other doctors arising out of the same complaints. A similar reference was made by the High Court to that fact, again without demur, in Walton v Gardiner (1993) 177 CLR 378 at 385, 400. That was the appeal against the decision of this Court in Gill v Walton. See also Herron v Sheahan, Supreme Court (Maxwell J), 29 April 1987, unreported (at 3-4).

74 Australian superior courts of record possess an inherent power permanently to stay further proceedings before them which are an abuse of process: Jago v District Court (NSW) (1989) 168 CLR 23 at 25 et seq. Statutory courts such as the District Court have such power only if given to them expressly or by implication in their statute: Ibid at 38, 56. A Local Court magistrate conducting a summary trial of an information also has such a power: DPP v Shirvanian (1998) 44 NSWLR 129 at 134-137. In Grassby v The Queen (1989) 168 CLR 1, the High Court held (at 10, 18) that a magistrate conducting committal proceedings in the Local Court does not have that power. Such a magistrate performs an administrative or ministerial function, and not a judicial one (see 18-19).

75 The Tribunal is not a court in the strict sense (Walton v Gardiner at 395), although it has many features of a court. It has the power to deregister or suspend a medical practitioner (Medical Practice Act, s 64) and therefore to affect his or her rights. It has the power to fine (s 62) and to impose conditions on the medical practitioner’s registration (s 61). The Tribunal does therefore perform some judicial functions. The Chairperson may be a District Court judge (s 148), and s 150 appears to assume that only a judge may be the Chairperson. The District Court judge (described as the “judicial member”) is given the same protection and immunity as a judge of the Supreme Court (s 151). There is an analogy between the concept of abuse of a court’s process in relation to criminal proceedings and the concept of abuse of the Tribunal’s process in relation to disciplinary proceedings: Walton v Gardiner (at 395).

76 The Tribunal’s power to grant a stay is said to be implied by ss 159, 161 and 164 of the Medical Practice Act. Those sections, so far as they could be relevant, provide:

Division 3 Inquiries, appeals etc before the Tribunal

159 Jurisdiction

161 Conduct of proceedings

164 Adjournments and interlocutory orders

Schedule 2

10 Expedition of inquiries and appeals

77 Neither s 159 nor clause 10 of Schedule 2 is merely a statement of the Tribunal’s specific jurisdiction to conduct (or hear) an inquiry into a complaint. Both provisions express the obligation of the Tribunal to exercise that jurisdiction in unusually mandatory terms, notwithstanding s 146 (the provision establishing the Tribunal) which, in subs (2), states in more general terms “The Tribunal has and may exercise the jurisdiction and functions conferred or imposed on it by or under this or any other Act” (I have added the emphasis). This Court has interpreted s 159 as imposing a duty on the Tribunal to conduct the inquiry; the Tribunal does not have a discretion: HCCC v Litchfield, Court of Appeal, 8 August 1997, unreported (at 10-11). The same approach has been taken in Victoria where the legislation is analogous, but not identical: XD v Johnson (2002) 6 VR 372 at [26]–[27]. The power to adjourn proceedings in s 164 does not imply a power to refuse to conduct (or hear) an inquiry on the basis that the complaint is an abuse of process. Section 161(1) does not add anything to the sum total of the other provisions.

78 There appears to be no need to imply a power in the Tribunal to stay its proceedings on the basis that they are an abuse of process when the Supreme Court has the power to stay those proceedings in such a case. This Court has held that the Supreme Court does have that power, under the exercise of its supervisory jurisdiction pursuant to s 23 of the Supreme Court Act 1970: Herron v McGregor (1986) 6 NSWLR 246 at 250-252; Gill v Walton at 201, 210 (these two cases arose out of the same matter, and may conveniently be grouped as “the Chelmsford cases”). The High Court (by majority) refused special leave to appeal in Herron v McGregor on the bases that it saw no reason to doubt the correctness of the conclusion reached by this Court in relation to the Supreme Court’s jurisdiction, and that for other reasons it was not a suitable vehicle in which to decide the issue of that jurisdiction (see (1993) 177 CLR 378 at 391). Because of the particular circumstances of delay surrounding the Chelmsford cases, the High Court subsequently declined to revisit the issue of this Court’s jurisdiction to stay proceedings in the Tribunal in Walton v Gardiner (at 390-391).

79 Nevertheless, when considering how the concept of abuse of process could be applied in an application to the Supreme Court to stay proceedings in the Tribunal, the majority in Walton v Gardiner was careful to proceed only on an assumption that the Supreme Court had jurisdiction to grant that relief (see at 395). The two justices who dissented in that case on the issue of this Court’s jurisdiction were of the view (at 406-408) that any jurisdiction possessed by the Supreme Court pursuant to s 23 of the Supreme Court Act was limited to ensuring that the Tribunal did not exceed its jurisdiction and perhaps to dealing with contempt of that Tribunal. They held that s 23 did not authorise the Supreme Court to determine whether the Tribunal should exercise its jurisdiction to hear a particular case where there had been an abuse of process.

80 In light of my conclusion in the present case that, assuming that the Tribunal had jurisdiction to entertain it, there was no error made by the Tribunal in rejecting the application for a stay (see pars [82]–[86] infra), it has become unnecessary in this appeal for me to determine the issue of the Tribunal’s jurisdiction to stay its proceedings where they are an abuse of process. That jurisdiction has not, however, been referred to in this case without demur.

81 In Walton v Gardiner, the majority of the High Court held (at 395-396) that the nature of the Tribunal’s jurisdiction is essentially protective of the public. When an application is made to the Supreme Court to stay proceedings before the Tribunal as an abuse of process, therefore, the High Court held that there must be a weighing process involving a subjective balancing of various factors and considerations, just as in relation to criminal proceedings, but that consideration must necessarily be given to the protective character of the proceedings and to the importance of protecting the public from incompetence and professional misconduct on the part of medical practitioners. Relevant to that balancing process, the majority said (at 396-398), was whether there was prejudice suffered (in the nature of double jeopardy) by any attempt to re-litigate in the new proceedings the same issues which had already been permanently stayed in the earlier proceedings.

82 In my opinion, again assuming that the Tribunal has jurisdiction to grant a stay of its own proceedings on the basis of an abuse of process, this same approach would have to be adopted by it. In the present case, the issue must therefore be whether there is anything in the nature of double jeopardy in the Commission seeking to re-litigate in the complaint based on the appellant’s medical records concerning Patients A and B issues which had already been determined in the complaint concerning Patient O.

83 The conduct of the appellant identified in the second complaint was of the same nature as that identified in the first complaint. In that way, the case resembles the Chelmsford cases. The second complaint related, however, to conduct which was alleged to have occurred two years after the conduct identified in the first complaint. If the second complaint were to be established, it would show that, despite the fact that the appellant knew that his medical records concerning Patient O were being investigated, he had not changed his ways.

84 It would certainly have been preferable for the two complaints to have been heard together, even though to do so would inevitably have led to a delay in hearing the first complaint. The delay in bringing the second complaint on for hearing was substantially (if not wholly) delay on the part of the Commission. The Commission would not be acting appropriately in making multiple complaints against a medical practitioner in relation to medical records concerning different patients when fairness dictates that they reasonably could and should have been heard together. In the present case, of course, the Commission was itself disadvantaged to some extent by continuing two sets of proceedings heard at different times (see pars [26], [35] supra), but the disadvantage to the medical practitioner in such a situation is much greater.

85 That was the point of the reference in the majority judgment in Walton v Gardiner (at 397) to Green v United States 355 US 184 (1957), where Black J, giving the Opinion of the US Supreme Court, referred to the “embarrassment, expense and ordeal” to which an individual is subjected by repeated attempts by the State to prosecute him. If the Commission continues to bring such multiple proceedings against a medical practitioner when they reasonably could and should have been heard together, the Tribunal should consider whether, in the exercise of its discretion, the additional costs incurred by the medical practitioner as a result of the multiplicity of proceedings should be paid by the Commission even though the subsequent proceedings are successful.

86 However, in my opinion (and once more assuming that the Tribunal had jurisdiction to entertain it), there was no error made by the Tribunal in rejecting the application for a stay in the present case. There are two reasons which cumulatively justified the refusal. The first is that it was reasonable for the Commission to bring proceedings based on the second complaint because of the continuing defective state of the appellant’s medical records. That reason distinguishes this case from the factual situation in the Chelmsford cases, but the reasoning is consistent with the approach stated by the High Court in Walton v Gardiner. Nevertheless, that reason alone may not have been sufficient in this case because the two sets of proceedings could and should have been heard together. The second reason — which I regard as the more substantial — is that no application was made for a stay at the time the complaint was made, when the appellant’s “embarrassment, expense and ordeal” was clearly foreseeable. Rather, it was made only when the evidence had been completed, by which time the highly self-destructive nature of the appellant’s own evidence in these proceedings had become apparent.

87 I would accordingly reject the first ground of appeal.

The orders made by the Tribunal

88 The orders made by the Tribunal are referred to in par [33] supra: the appellant was severely reprimanded, the condition that the appellant submit to a random audit of his medical records was reimposed, and an additional condition was imposed requiring him to accept supervision. The Commission was ordered to pay 75% of the appellant’s costs of the hearing.

(i) The severe reprimand

89 The severe reprimand was stated to be referable only to the appellant’s conduct in failing to keep proper medical records concerning Patients A and B, and not to his conduct in relation to the pathology report incident. The fact that I would now dismiss the complaint concerning the pathology report incident does not by itself lead to a need to reconsider that order.

90 Although I have concluded that, taking into account only the relevant material regarding the appellant’s conduct in relation to his medical records concerning Patients A and B, that conduct should still be characterised as unsatisfactory professional conduct, the quality of that unsatisfactory professional conduct is not quite of the same order as the Tribunal considered it to be. The material relating to the appellant’s medical records concerning Patient O which was irrelevant to the characterisation made by the Tribunal did give that conduct a more serious quality of unsatisfactory professional conduct than was appropriate when that irrelevant material is disregarded.

91 Nevertheless, I am satisfied that a reprimand remains appropriate. The Tribunal said that the appellant should be “severely” reprimanded. There is no express statutory provision for a “severe” reprimand, but I agree with the view expressed by Hodgson JA (at par [3] supra) that such a reprimand falls within s 61(1)(a) of the Medical Practice Act. It would no doubt be appropriate in some cases for the additional opprobrium of a severe reprimand to be made public in relation to the particular medical practitioner, and to demonstrate to that practitioner that the matter was not considered to be trivial. The Commission has argued that the appellant’s attitude of arrogant disregard of his obligations to keep proper medical records disclosed by his evidence in the present proceedings justifies a severe reprimand. I accept that that is an appropriate basis for such a finding, as it is clear that the appellant’s conduct in relation to Patients A and B was not an isolated incident (see par [25] supra). The arrogance was substantial, and the resulting failure of the appellant to keep proper medical records could lead to a substantial risk of harm to a number of patients. I would accordingly confirm the finding that the appellant should be severely reprimanded.

(ii) Reimposition of the audit condition

92 The Commission has asked this Court to impose the same condition on the appellant’s registration, that he submit to a random audit of his medical records. Notwithstanding the reservation I expressed during the hearing of the appeal as to this condition being completely open-ended, the appellant did not seek to have it restricted to a fixed period, placing the obligation on the Commission to have the period extended rather than on the appellant to have it terminated. In these circumstances, I would reimpose the same condition.

93 For convenience, the first sentence of the supervision condition imposed by the Tribunal (which is quoted in full in par [33] supra) is repeated:

Dr Lindsay is to accept supervision by a person nominated by the [Medical] Board to provide support and to monitor Dr Lindsay’s capacity to practise medicine safely.

Dr Lindsay is to accept supervision by a person nominated by the Board to monitor and provide support in regard to Dr Lindsay’s keeping of medical records for his patients.

The Commission submits that it should read:

Dr Lindsay is to accept supervision by a person nominated by the Medical Board to provide support and to monitor Dr Lindsay’s record keeping and communication with patients.

The last four words are irrelevant to the remaining complaints, which concern only record-keeping. Those words are unnecessary.

94 Accordingly, I would impose the additional condition with the first sentence reading:

Dr Lindsay is to accept supervision by a person already nominated by the Medical Board to provide support and to monitor Dr Lindsay’s keeping of medical records for his patients.

(iv) The costs order

95 The Tribunal’s power to order costs is given by clause 13 of Schedule 2 of the Medical Practice Act. The power is given in general terms. An issue was raised during the hearing of the appeal as to whether an appeal lies against an order for costs made by the Tribunal. It is unnecessary to consider here whether such an appeal would lie where the costs order itself is the only matter in dispute. In the present case, a number of errors of law have been demonstrated in relation to the findings of the Tribunal which led to the ultimate complaint had been proved, and an appeal lies in relation to those findings pursuant to s 90 of the Act. It is sufficient to say that a costs order made as a consequence of such an error of law must necessarily also fall within s 90.

96 The complaints made by the Commission were substantially amended on a number of occasions. Of the seventeen particulars of the complaints remaining at the commencement of the hearing, one minor particular was not pressed, and only three of the particulars were proved to the satisfaction of the Tribunal, one of them (in relation to the pathology report incident) being of little significance in the overall case. Moreover, only five days before the commencement of the hearing, the Commission withdrew two very substantial particulars which were in the following terms:

97 These particulars had been included in the original complaints made by the Commission some three years earlier. The material in support of the particulars of inadequate or unqualified surgery served with the Commission’s brief included expert reports by a specialist. The appellant and his legal representatives prepared substantial material in defence of these two charges. That material included a number of reports of which about one half related to the issue of the appellant’s surgical competence. Three medical experts were subpoenaed to give evidence on behalf of the appellant, and the St Vincent’s General Hospital was subpoenaed to produce various documents relating to the appellant’s surgical competence.

98 Before the Tribunal, the appellant submitted that, having regard to the withdrawal of the very serious charges shortly before the commencement of the hearing and the Commission’s lack of success in relation to the remaining particulars, the Commission should pay 85% of his costs of the whole proceedings, including the costs of defending the complaints made in relation to Patients A and B before and after the amendment to the complaints. In its final determination, the Tribunal accepted that the Commission had been unsuccessful in the majority of the particulars of which it complained, but stated that the Commission had been successful in illustrating the appellant’s failure to understand and to comply with the existing conditions of his registration with regard to record-keeping. The Tribunal pointed out that the hearing was “in any event unnecessarily prolonged by Dr Lindsay’s unwillingness or inability to respond briefly and directly to any questions”. The Tribunal stated that the complainant should pay the major part of the appellant’s costs, but that this should be in relation “only in the defence of the further amended complaint, that is the complaint which was heard and determined by the Tribunal”. This necessarily excluded the costs thrown away by the withdrawal of the two very substantial charges five days before the hearing commenced and by the other amendments made by the Commission to the complaints. The Tribunal then determined that the complainant should pay 75% of the appellant’s costs “on this restricted basis”. No reasons were given by the Tribunal for rejecting the claim by the appellant for the costs thrown away. The unnecessary verbosity of the appellant (which was not even found to have been deliberate) is hardly a reason for that rejection.

99 The Commission has conceded that, if the costs order made by the Tribunal is to be interpreted in the way stated in the last paragraph, there has been an injustice. The Commission did not suggest how the costs order could otherwise have been interpreted. So unreasonable was the costs determination that the inference inevitably arises that the Tribunal completely misconceived its function in relation to costs. During the course of the hearing of the appeal, there was some discussion as to whether the Tribunal should have ordered that the Commission pay the whole of the costs thrown away by the withdrawal of those charges and a percentage of the costs of the hearing itself, but the Commission submitted that, as the appellant had been content to seek a percentage of the overall costs, this Court should therefore deal with his application by a reconsideration only of the percentage of all of the costs. This appears to me to be a reasonable approach to the issue.

100 I consider that the appellant is entitled to have the substantial costs thrown away as a result of the various amendments made to the complaints by the Commission included in his order for costs of the proceedings in the Tribunal. The Tribunal’s assessment that the appellant was entitled to have 75% of the costs of the hearing paid by the Commission was nevertheless a generous one. The Commission was entitled to commence the proceedings in relation to his medical records, and a substantial part of the hearing was concerned with that issue. In my view, therefore, justice would be done by an order by an order that the Commission is to pay 75% of all of his costs. That is what I would order.

Costs of the appeal

101 The appellant has succeeded in having the complaint based on his conduct concerning the pathology report incident dismissed. Although the Commission conceded error on the part of the Tribunal in characterising that conduct as unsatisfactory professional conduct, at the same time it opposed the appellant’s successful argument that, were it not for the Tribunal’s error in taking the material relating to Patient O into account in making that characterisation, it would have dismissed the complaint. It also sought (at least initially) to have this Court substitute its own characterisation of that conduct as unsatisfactory professional conduct. It failed on all those issues.

102 The appellant has also succeeded in having the terms of the supervision order reduced in his favour. The Commission conceded that there should be some reduction, but not as far as the order has now been reduced. Although the appellant succeeded in demonstrating that the Tribunal erred in taking irrelevant material into account when characterising his conduct concerning his medical records as unsatisfactory professional conduct, the Commission had conceded this, and the Commission succeeded in its Notice of Contention that this Court should characterise that conduct as unsatisfactory professional conduct for itself.

103 The appellant has substantially (but not completely) failed in his appeal. I would order him to pay 60% of the Commission’s costs of the appeal.

A side issue

104 At the conclusion of the hearing of the appeal, the Court was informed that the Medical Board, which was the body nominated by the Tribunal to monitor the appellant’s “capacity to practise medicine safely” pursuant to the Tribunal’s order, had the previous week sought for the first time since the Tribunal’s decision was given on 12 August 2004 to enforce the Tribunal’s order. This was unfortunate, as the Commission had already by that time formally made a concession that the order had to be varied by deleting the reference to the appellant’s capacity to practice safely. If the Medical Board did not know that that concession had been made, then the Commission deserves criticism for not having informed it of that concession. If the Board did know that the concession had been made, then it ought not to have sought to enforce the Tribunal’s order. Unfortunately, the position could not be made clear at the hearing, and this Court was obliged to stay that part of the Tribunal’s order relating to the appellant’s capacity to practice safely. It was made clear that that stay did not affect the condition on the appellant’s registration that he submit to a random audit of his medical records.

105 I propose that the following orders be made:

1. The appeal is allowed in part.

Medical Practice Act

Dr Lindsay is to continue to submit to a random audit of his medical records by the person or persons already nominated by the New South Wales Medical Board to monitor his compliance with Schedule 2 of the Medical Practice Regulation 2003 as required by the Board. Dr Lindsay is to continue to authorise the said person or persons to prepare for the Board a report of his/her findings. Dr Lindsay is to meet all costs associated with the audit programme.

Dr Lindsay is to accept supervision by the person already nominated by the Medical Board to provide support and to monitor Dr Lindsay’s keeping of medical records for his patients. The supervisor is to provide supervision to the third level nominated in the Board’s policy PCH 7.1 dated August 2002. The costs of such supervision and reporting to the Board at least annually is to be borne by Dr Lindsay. It is an element of this condition that Dr Lindsay cooperate fully with his supervisor.

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Citations

Lindsay v Health Care Complaints Commission [2005] NSWCA 356

Most Recent Citation

Law Society of New South Wales v Khera [2005] NSWADT 277

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Statutory Material Cited

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Daskalopoulos v Health Care Complaints Commission [2002] NSWCA 200

Health Care Complaints Commission v A Medical Practitioner [2001] NSWCA 158

Lindsay v Health Care Complaints Commission [2004] NSWCA 222

CITATION:	Lindsay v Health Care Complaints Commission [2005] NSWCA 356
HEARING DATE(S):	6 September 2005
JUDGMENT DATE:	8 November 2005
JUDGMENT OF:	Mason P at 1; Hodgson JA at 2; Hunt AJA at 4
DECISION:	1. The appeal is allowed in part; 2. The appeal against the Medical Tribunal’s decision refusing to grant a stay of proceedings is dismissed; 3. The appeal against the Tribunal’s decision upholding the complaints against the appellant in relation to his medical records concerning Patients A and B is dismissed; 4. The appeal against the Tribunal’s characterisation of the appellant’s failure to provide Patient A with a copy of his pathology results as unsatisfactory professional conduct is upheld, and the complaint against the appellant in relation to his conduct concerning Patient A is to that extent dismissed; 5. The Tribunal’s decision dismissing the complaint against the appellant in relation to his conduct otherwise than in relation to his medical records concerning Patient B is confirmed; 6. The appeal against the Tribunal’s finding that the appellant be severely reprimanded in relation to his medical records concerning Patients A and B is dismissed; 7. The following audit condition on the appellant’s registration as a medical practitioner is imposed pursuant to s 61(1)(c) of the Medical Practice Act 1992 in substitution for that imposed by the Tribunal:; Dr Lindsay is to continue to submit to a random audit of his medical records by the person or persons already nominated by the New South Wales Medical Board to monitor his compliance with Schedule 2 of the Medical Practice Regulation 2003 as required by the Board. Dr Lindsay is to continue to authorise the said person or persons to prepare for the Board a report of his/her findings. Dr Lindsay is to meet all costs associated with the audit programme; 8. The following supervision condition on the appellant’s registration as a medical practitioner is imposed pursuant to s 61(1)(c) in substitution for that imposed by the Tribunal:; Dr Lindsay is to accept supervision by the person already nominated by the Medical Board to provide support and to monitor Dr Lindsay’s keeping of medical records for his patients. The supervisor is to provide supervision to the third level nominated in the Board’s policy PCH 7.1 dated August 2002. The costs of such supervision and reporting to the Board at least annually is to be borne by Dr Lindsay. It is an element of this condition that Dr Lindsay cooperate fully with his supervisor; 9. The appeal against the costs order made by the Tribunal is upheld. The Commission is ordered to pay 75% of the appellant’s costs in the Tribunal, such costs to include all the costs thrown away as a result of the various amendments made to the complaints by the Commission; 10. The appellant is ordered to pay 60% of the Commission’s costs of the appeal.

CATCHWORDS:	Medical Tribunal - complaint of unsatisfactory professional conduct - material showing that conduct was part of a pattern and not isolated - other conduct not the subject of a complaint before the Tribunal - material relevant to orders to be made if conduct complained of established to be unsatisfactory professional conduct - material irrelevant to characterisation of conduct as unsatisfactory professional conduct - error of law by Tribunal in taking other conduct into account when characterising conduct as unsatisfactory professional conduct. - Medical Tribunal - power of Supreme Court on appeal to make such order as it thinks fit when error of law established - need for caution when differing from specialist tribunal as to how conduct should be characterised. - Medical Tribunal - jurisdiction of Tribunal to stay proceedings before it where an abuse of process considered - approach to be taken (assuming jurisdiction). - Medical Tribunal - jurisdiction of Supreme Court to stay proceedings before Tribunal where an abuse of process considered - approach to be taken.
LEGISLATION CITED:	Medical Practice Act 1992 Medical Practitioners Act 1938 Supreme Court Act 1970 Medical Practice Regulation 1998
CASES CITED:	Bannister v Walton (1993) 30 NSWLR 699 Briginshaw v Briginshaw (1938) 60 CLR 336 Daskalopoulos v HCCC [2002] NSWCA 200 DPP v Shirvanian (1998) 44 NSWLR 129 Gill v Walton (1991) 25 NSWLR 190 Green v United States 355 US 184 (1957) Grassby v The Queen (1989) 168 CLR 1 HCCC v A Medical Practitioner [2001] NSWCA 158 HCCC v Litchfield, Court of Appeal, 8 August 1997, unreported Herron v McGregor (1986) 6 NSWLR 246 Herron v Sheahan, Supreme Court (Maxwell J), 29 April 1987, unreported House v The King (1936) 55 CLR 499 Jago v District Court (NSW) (1989) 168 CLR 23 Lindsay v Health Care Complaints Commission [2004] NSWCA 222 Pillai v Messiter [No 2] (1989) 16 NSWLR 197 Qidwai v Brown [1984] 1 NSWLR 100 Rejfek v McElroy (1965) 112 CLR 517 Sabag v HCCC [2001] NSWCA 411 Sinha v HCCC [2001] NSWCA 206 Walton v Gardiner (1993) 177 CLR 378 Winagaratne v HCCC [2000] NSWCA 204 XD v Johnson (2002) 6 VR 372
PARTIES:	Dr David Charles Lindsay (Appellant) Health Care Complaints Commission (Respondent)
FILE NUMBER(S):	CA 40756/04
COUNSEL:	D F Jackson QC / R D Marshall (Appellant) C E Adamson SC / S A Beckett (Respondent)
SOLICITORS:	Kelvin Solari (Appellant) Karen Mobbs (Respondent)

LOWER COURT JURISDICTION:	Medical Tribunal of New South Wales
LOWER COURT JUDICIAL OFFICER:	Judge Freeman, Dr D Glenn, Dr J Kendrick, Ms J Houen