O'Sullivan v Health Care Complaints Commission of New South Wales
[2008] NSWCA 295
•13 November 2008
NEW SOUTH WALES COURT OF APPEAL
CITATION:
O'Sullivan v Health Care Complaints Commission of New South Wales [2008] NSWCA 295
FILE NUMBER(S):
40793/06
HEARING DATE(S):
17 September 2008
JUDGMENT DATE:
13 November 2008
PARTIES:
Brendan Thomas O’SULLIVAN (Appellant)
HEALTH CARE COMPLAINTS COMMISSION OF NEW SOUTH WALES (Respondent)
JUDGMENT OF:
Allsop P Hodgson JA Handley AJA
LOWER COURT JURISDICTION:
New South Wales Medical Tribunal
LOWER COURT FILE NUMBER(S):
NSWMT 40028/05
LOWER COURT JUDICIAL OFFICER:
Walmsley SC DCJ; Kok Dr E; Houen Ms J; Brash Dr D
LOWER COURT DATE OF DECISION:
10 November 2006
LOWER COURT MEDIUM NEUTRAL CITATION:
In Re Dr Brendan O'Sullivan [2006] NSWMT 13
COUNSEL:
K M CONNOR/ M AVENELL (Appellant)
A KATZMANN SC/ P GRIFFIN (Respondent)
SOLICITORS:
Kenneth Harrison (Appellant)
Health Care Complaints Commission of New South Wales (Respondent)
CATCHWORDS:
PROFESSIONS – MEDICAL PRACTITIONERS – Unsatisfactory professional conduct – Change in definition – Transitional provisions – Whether Medical Tribunal addressed statutory question – Whether reasons adequate.
LEGISLATION CITED:
Medical Practice Act 1992 ss 36, 39, 41, 42, 49, 50, 91, 159, 161, 165, Schedule 2.
Health Care Complaints Commission Act 1993 s 4
Health Registration Legislation Amendment Act 2004 s 36
Health Legislation Amendment (Complaints) Act 2004 s 11, Pt 4 of Schedule 1
Poisons and Therapeutic Goods Act 1966 s 28
CATEGORY:
Principal judgment
CASES CITED:
Daskalopoulous v Health Care Complaints Commission [2002] NSWCA 200
Health Care Complaints Commission v Karalasingham [2007] NSWCA 267
Health Care Complaints Commission v Wingate [2007] NSWCA 326
Household Financial Services Limited v Commercial Tribunal of NSW (1995) 36 NSWLR 220
Paric v John Holland (Constructions) Pty Limited (1985) 62 ALR 85
Prakash v Health Care Complaints Commission [2006] NSWCA 153
Saville v Health Care Complaints Commission [2006] NSWCA 298
Seltsam Pty Limited v Ghaleb [2005] NSWCA 208; 3 DDCR 1
Suttor v Gundowda Pty Limited (1950) 81 CLR 418
TEXTS CITED:
DECISION:
Appeal dismissed with costs.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40793/06
NSWMT 40028/05ALLSOP P
HODGSON JA
HANDLEY AJA13 NOVEMBER 2008
Brendan Thomas O’SULLIVAN v HEALTH CARE COMPLAINTS COMMISSION OF NEW SOUTH WALES
Judgment
ALLSOP P: I have had the advantage of reading the draft reasons for judgment of Hodgson JA. I agree with the orders proposed by his Honour. Subject to the following comments, I agree with his Honour’s reasons.
As to the question of the relationship between the Health Legislation Amendment (Complaints) Act 2004 (NSW), s 11 and the Medical Practice Act 1992 (NSW), s 50 and which form of s 36(1)(a) of the latter Act was applicable, it might be said that the complaint that was transferred to the Tribunal by the Board remained the same complaint as had been made to the Board and, so, the amendment did not apply because it had already been referred to the Board. Whilst that argument initially attracted me, I think the better construction is that adopted by Hodgson JA. The complaint was referred to the Tribunal; the question is whether that was done before or after the amendment.
As to the notice of contention, the extent that this Court should, under the Medical Practice Act, s 91, engage in assessments of a factual and evaluative character in connection with the conclusions of the Tribunal, if an error of law has been shown, is a matter of considerable importance, and is not without difficulty: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [14] ff; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [81]-[92]; Seltsam Pty Limited v Ghaleb [2005] NSWCA 208; 3 DDCR 1 at [148]-[168]; Health Care Complaints Commission v Wingate [2007] NSWCA 326; and Saville v Health Care Complaints Commission [2006] NSWCA 298 at [11] ff. It is unnecessary to deal with the issue.
HODGSON JA: On 10 November 2006, the Medical Tribunal (the Tribunal) found that certain conduct of the appellant amounted to unsatisfactory professional conduct, ordered that he be reprimanded and that he comply with certain requirements, and ordered that he pay the costs of the Health Care Complaints Commission (the Commission).
The appellant appeals from that decision. Pursuant to s 91(a) of the Medical Practice Act 1992 (MP Act), an appeal to this Court is available against a decision of the Tribunal “with respect to a point of law”.
Statutory provisions
There is a definition of “unsatisfactory professional conduct” in s 36 of the MP Act. As at 17 October 2002 and until 28 February 2005, s 36(1) relevantly provided:
36Meaning of "unsatisfactory professional conduct"
(1)For the purposes of this Act, unsatisfactory professional conduct of a registered medical practitioner includes each of the following:
(a) Lack of skill etc
Any conduct that demonstrates a lack of adequate knowledge, skill, judgment or care, by the practitioner in the practice of medicine. '
As from 1 March 2005, s 36(1)(a) of the MP Act was amended by the Health Registration Legislation Amendment Act 2004, so that there was substituted the following paragraph:
(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.
There were transitional provisions in the Health Legislation Amendment (Complaints) Act 2004. Part 4 of Schedule 1 of that Act relevantly provided:
10 Definition
In this Part:
amending Act means the Health Registration Legislation Amendment Act 2004.
11 Pending proceedings
(1)An amendment made to a health registration Act by the amending Act does not apply to a complaint that was referred to a Committee or Tribunal under the health registration Act before the commencement of the amendment.
(2)An amendment made to a health registration Act by the amending Act does not apply to a complaint if an inquiry into the complaint under the health registration Act had commenced before the commencement of the amendment.
The MP Act was a health registration Act: Health Care Complaints Commission Act 1993 (HCCC Act) s 4.
Other relevant sections of the MP Act concerning complaints have been the same at all material times.
Section 39 sets out grounds of complaint about registered medical practitioners, including that the practitioner has been guilty of unsatisfactory professional conduct. Any person can make a complaint (s 41), and complaints can be made to the NSW Medical Board (the Board) or the Commission (s 42).
Sections 49 and 50 provide relevantly as follows:
Board and Director-General to consult on complaint
49. (1) Before any action is taken on a complaint, the Board and the Director-General are to consult in order to see if agreement can be reached between them as to the course of action to be taken concerning the complaint..
………
Courses of action available to the Board on a complaint
50. (1) The following courses of action are available to the Board in respect of a complaint made to the Board or that the Board has decided to make:
(a) the Board may refer the complaint to an Impaired Registrants Panel, a Committee or the Tribunal, as the Board thinks fit;
………
(c) the Board may direct the practitioner concerned to attend counselling;
………
(e) the Board may determine that no further action should be taken in respect of the complaint.
(2) Before or at the same time as it refers a complaint to a Committee or the Tribunal, the Board must refer the complaint to the Commission for investigation.
(3) The Commission must, on receipt of a complaint referred by the Board for investigation, investigate the complaint or cause it to be investigated.
………
The words “a Committee” in s 50(1)(a) refer to a Professional Standards Committee constituted under Part 12 of the MP Act: see the Dictionary, cl 1.
Part 11 of the MP Act concerns the Tribunal. Relevant sections are s 159, s 161 and s 165. Those sections are as follows:
Jurisdiction
159. The members of the Tribunal are to conduct an inquiry into any complaint, matter or application and are to hear any appeal referred to it. No inquiry need be conducted into a complaint if the registered medical practitioner who is the subject of the complaint admits the subject-matter of the complaint in writing to the Tribunal.
………
Conduct of proceedings
161. (1) The Tribunal is to conduct proceedings on an inquiry or appeal as it thinks fit.
(2) Proceedings of the Tribunal are to be open to the public except when the Tribunal otherwise directs.
(3) The Tribunal is not to direct that proceedings are to be closed to the public unless satisfied that it is desirable to do so in the public interest for reasons connected with the subject-matter of the inquiry or appeal or the nature of the evidence to be given.
(4) Schedule 2 has effect with respect to any inquiry conducted or appeal heard by the Tribunal.
………
Tribunal to provide details of its decision
165. (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.
(3) The Tribunal may also provide the statement of a decision to such other persons as the Tribunal thinks fit.
(4) The Board may provide a copy of the statement of a decision provided to it under this section to such persons as the Board thinks fit, unless the Tribunal has ordered otherwise.
Schedule 2 of the MP Act concerns proceedings before a Committee for the Tribunal. Relevant clauses are clauses 1 and 5:
Proceedings generally
1. In proceedings before it, a Committee or 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.
………
Additional complaints
5. (1) A Committee or the Tribunal may in proceedings before it deal with one or more complaints about a registered medical practitioner.
(2) If, during any such proceedings, it appears to a Committee or the Tribunal that, having regard to any matters that have arisen, another complaint could have been made against the practitioner concerned:
(a) whether instead of or in addition to the complaint which was made; and
(b) whether or not by the same complainant,
the Committee or the Tribunal may take that other complaint to have been referred to it and may deal with it in the same proceedings.
(3) If another complaint is taken to have been referred to a Committee or the Tribunal under subclause (2), the complaint may be dealt with after such an adjournment (if any) as is, in the opinion of the Committee or the Tribunal, just and equitable in the circumstances.
Circumstances
Complaint was made against the appellant concerning his conduct in 2002 in prescribing Patient A a Schedule 8 drug, flunitrazepam; and particularly his conduct in prescribing Patient A 60 flunitrazepam tablets on 17 October 2002 and another 90 such tables on 24 October 2002.
Following an initial complaint made to the Board on 29 October 2002 by Central Sydney Health Service, and an inquiry by the Board, on 19 March 2003 the Board wrote to the Commission complaining that the appellant “is guilty of unsatisfactory professional conduct or professional misconduct”.
It appears that the Commission investigated this complaint, and that on or about 18 August 2004, the Commission referred the complaint to a Committee, then expressing it as a complaint in terms of s 36(1)(a) of the MP Act, as it then was. The complaint as then formulated and particularised does not appear to be in evidence. However, the terms of the complaint and particulars may be gathered from a letter from the Commission to Mr Murtaugh, a barrister then acting for the appellant, dated 20 May 2005 (1 Blue 201-207) answering a request for further particulars.
Preparations went ahead for a hearing of the complaint by a Committee. However, on 7 June 2005 solicitors acting for the appellant requested the Board to refer the complaint to the Tribunal; and on or about 21 June 2005 the Board did this.
On 29 September 2005, an amended complaint was filed in the Tribunal, and that was the complaint that was before the Tribunal when it made the finding and orders appealed against. This amended complaint was in the following terms:
The Health Care Complaints Commission, of Level 13, 323 Castlereagh Street, Sydney, having consulted with the New South Wales Medical Board In accordance with s.51(1) of the Medical Practice Act 1992 ("the Act").
HEREBY COMPLAINS that:
Dr Brendan O'Sullivan of Suite 1003, 10th Floor, 231, Macquarie Street, Sydney, NSW, 2000 ("the Practitioner") being a medical practitioner registered under the Act,
COMPLAINT
Has been guilty of unsatisfactory professional conduct within the meaning of s.36 of the Act in that the practitioner has engaged in conduct which demonstrates a lack of adequate knowledge, judgment, skill or care in the practice of medicine and/or engaged in improper and/or unethical conduct related to the practice of medicine.
PARTICULARS
The practitioner is a specialist psychiatrist working in private practice in Sydney. During 2002 the practitioner treated a female patient, Patient A.
1.During 2002 the practitioner inappropriately prescribed Patient A a Schedule 8 drug, flunitrazepam, in the quantities and on or before the drug dispensing dates shown in the schedule marked Annexure A without proper and sufficient clinical indications for doing so and in circumstances where the practitioner knew or ought to have known that continued prescription of flunitrazepam put the patient at risk of becoming dependant on the drug.
2.The practitioner inappropriately prescribed Patient A 60 (sixty) flunitrazepam tablets on 17 October 2002 and 90 (ninety) tablets on 24 October 2002 in circumstances where:
(a) Patient A was engaging in self-harming behaviour at the relevant time;
(b) the quantities of medication prescribed were excessive and not clinically justified;
(c) Patient A had been admitted to hospital for a possible flunitrazepam overdose on 19 October 2002;
(d) even if the practitioner was not aware that the Patient A had been admitted to hospital for a possible flunitrazepam overdose on 19 October 2002, he should have considered the possibility that Patient A was abusing the medication.
3.The practitioner prescribed flunitrazepam to Patient A for a period exceeding two months without having applied for or been given an authority under s.29 of the Poisons and Therapeutic Goods Act 1966, in, breach of s.28 of the Poisons and Therapeutic Goods Act 1966. '
However, a letter dated 9 February 2006 from the Commission to the barrister then representing the appellant included the following:
In order to provide a relevant response outlined below is the Amended Complaint with the particulars in support of each paragraph inserted as annotations under the heading 'Further Particulars'.
Amended Complaint
Has been guilty of unsatisfactory professional conduct within the meaning of s.36 of the Act in that the practitioner has engaged in conduct which demonstrates a lack of adequate knowledge, judgment, skill or care in the practice of medicine and/or engaged in improper and/or unethical conduct related to the practice of medicine.
Further Particulars
Section 36 of the Medical Practice Act 1992 defines 'unsatisfactory professional conduct' relevantly, as follows:
(1)For the purposes of this Act, unsatisfactory professional conduct of a registered medical practitioner includes each of the following:
(a) 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.
(m) Any other improper or unethical conduct relating to the practice or purported practice of medicine.
Counsel for the Respondent has submitted that the Complainant must prove that the Respondent is below a reasonable standard in all elements of the definition. The Amended Complaint does not allege that the Respondent has been guilty of conduct that demonstrates a lack of adequate knowledge and a lack of adequate skill and a lack of adequate judgment and a lack of adequate care in the practice of medicine and that his conduct is improper and unethical. These elements of the definition are alleged in the alternative. If just one is established, the Respondent is guilty of unsatisfactory professional conduct. The acts or conduct alleged to constitute unsatisfactory professional conduct are particularised in Particulars 1 to 3 of the Amended Complaint.
As the Complaint against the Respondent was referred to the Medical Tribunal on 30 June 2005, the subsequent Amended Complaint is governed by the definition of unsatisfactory professional conduct as in force on and from 1 March 2005.
The hearing before the Tribunal commenced on 6 November 2006. The appellant was unrepresented. In opening oral submissions, counsel for the Commission asserted that it relied on s 36(1)(a) of the MP Act as amended, and this was repeated in closing submissions.
Decision of Tribunal
The Tribunal identified the question before it as follows:
3 The question for the Tribunal to decide is whether Dr O'Sullivan, ('the Practitioner'), is guilty of what is known as 'unsatisfactory professional conduct' within the meaning of s 36 of the Medical Practice Act (the Act). The relevant subsection of s 36 is as follows:
"Meaning of Unsatisfactory Professional Conduct:
(1) For the purposes of this Act unsatisfactory professional conduct of a registered medical practitioner includes 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. "
The Tribunal then recounted the background facts:
14 Dr O'Sullivan graduated from the University of Sydney with bachelor degrees in science and medicine and an MA. He undertook three years training as a physician and then became a psychiatric registrar. He trained for five years in psychiatry. He became a Fellow of the College of Psychiatrists of Australia and New Zealand in 1988. In 1991, he was awarded the degree of Doctorate of Philosophy. Thereafter, for two years, he undertook post doctoral studies in Stockholm. He then returned to Australia and for many years conducted research in psychiatry at the University of Sydney and the Royal Prince Alfred Hospital.
15 He had rights of private practice in those positions, which in 2000 he exercised at the Royal Prince Alfred Medical Centre. His employer at that time was the South East Area Health Service. In mid 2000 he ceased employment with that body. The circumstances of his ceasing to be so employed became the subject of litigation in another jurisdiction which is, as yet, unresolved.
16 Dr O'Sullivan has the facility to communicate with people who are speech impaired and who are deaf. This is a rare and valuable facility in a psychiatrist.
17 Patient A became his private patient in the early 1990's. She has a borderline personality disorder and has been deaf since birth. After she came under his care she was also treated by a psychiatrist in the public health system called Dr Buhrich. This arrangement is known in medical circles as a shared care arrangement. Dr Buhrich would care for her when she was under the care of hospital authorities and Dr O'Sullivan when she was not.
18 For several years before October 2002 Patient A had been prescribed a drug which had the popular name of Rohypnol. Its generic name is flunitrazepam. It is also known as Hypnodorm. At that time its primary use was for the treatment of insomnia. Fortunately, there are now less addictive drugs available such as Stilnox to treat insomnia. Hypnodorm is a drug of addiction. It is a Schedule W 8 drug. It is a member of the benzodiazapine group of drugs. It has marked sedative and hypnotic properties and has rapid onset of action. It has the disadvantages that patients who use it suffer overdoses and develop a physical dependence. It can impair memory, psychomotor performance and judgment. Patients with a long history of dependence on alcohol or other drugs are more likely to become dependent on it or intentionally to misuse it.
19 Patients who are prone to self harming commonly overdose on prescribed benzodiazapines. Hypnodorm was first listed as a drug of addiction in New South Wales in August 2000. This followed public concern about the harm its misuse was causing. Since then New South Wales Health Department approval has been required for its prescription to a drug dependent person. In all cases an authority is needed where prescribing exceeds two months.
20 For many years before October 2002 Patient A was prone to engage in acts of self harm, often by cutting or burning her own stomach and other parts of her body. Dr O'Sullivan told us that her stomach carries extensive scarring from these acts of self harm.
21 As at October 2002, Dr O'Sullivan, who continued to treat patient A as a private patient when she was not hospitalised -which she was from time to time - had a poor personal relationship with Dr G Buhrich and another of his co-workers, the late Dr Beumont.
22 In October 2002, Dr Beumont apparently formed the view that Dr O'Sullivan was prescribing Hypnodorm inappropriately for patient A. He told Area Health Service employees, Drs Horvath and Storm and some others, of his concerns. Dr Horvath passed on those concerns to the Medical Board. In time, the complaint referred to above was made. The complaints originally made were more extensive than those which found their way to us in the amended complaint.
The Tribunal then addressed the three parts of the Particulars.
The Tribunal found that Part 1 of the Particulars was not made out, because Patient A was already dependent on the drug.
As regards Part 2, the Tribunal found that part of the Complaint was established on the balance of probabilities.
As regards Part 3, the Tribunal found that the Commission’s case was made out very clearly on the third part of the Complaint.
After considering certain contentions by the appellant, and referring to a report from a consultant psychiatrist Dr Durrell tendered by the appellant, the Tribunal said this:
66 Dr Durrell gives support for Dr O’Sullivan on the third part of the complaint. That is, he says that in the psychiatric profession the failure to seek approval as required by s 28 was not one of the more significant matters. We have taken account of what he says. Having in mind what all of the psychiatric witnesses have had to say about the breach of the section and having in mind the matters proved in parts 2 and 3 of the complaint, we are of the view that the conduct of Dr O’Sullivan does amount to unsatisfactory professional conduct and we find that in the circumstances as proved his conduct did amount to unsatisfactory professional conduct.
The Tribunal then proceeded to consider the question of penalty and costs. There is no separate challenge to this aspect of the decision.
Issues on appeal
The appellant relies on the following grounds of appeal (omitting particulars):
1A.In holding that the Appellant was guilty of unsatisfactory professional conduct, the Tribunal:
(a) Misdirected itself as to the correct statutory question to address: and
(b) Did not address the correct statutory questions. namely:
(i)What was the conduct of the Appellant?
(ii)Does the conduct demonstrate a lack of adequate knowledge, skill, judgment or care by the Appellant?
………
1.If, however, s 36(1)(a) as amended applied to the complaint, in holding that the Appellant was guilty of unsatisfactory professional conduct {Tribunal's Statement [66]}, the Tribunal did not address the correct statutory question, namely:
whether (1) the Appellant's conduct (as set out in Particulars 2 and 3 of the Amended Complaint) (2) demonstrates that the knowledge, skill or judgment possessed or care exercised by him in the practice of medicine is (3) significantly below (4) the standard reasonably expected of a practitioner of an equivalent level of training or experience.
(paragraph 36(1)(a) of the Medical Practice Act 1992)
………
2.The Tribunal failed to provide a sufficient statement of its decision to satisfy the obligation imposed upon it by section 165 of the Medical Practices Act.
The Commission seeks to rely on the following ground of a Notice of Contention:
The Respondent contends that, even if the former definition of unsatisfactory professional conduct applied, the Tribunal was entitled to find the Appellant guilty of unsatisfactory professional conduct upon proof of particular 2 and/or particular 3 of the complaint.
I will consider in turn the following issues:
(1)Which definition of unsatisfactory professional conduct applies?
(2)Did the Tribunal address the correct statutory question?
(3)Did the Tribunal give insufficient reasons?
(4)Other matters.
Which definition applied?
According to the transitional provisions, the critical date was the date on which the complaint was referred to a Committee or Tribunal.
Since the proceedings in this case were before the Tribunal, in my opinion, the relevant date is the date on which the complaint was referred to the Tribunal, that is, on or about 21 June 2005. Accordingly, it was the amended definition that applied in this case.
The alternative view would be that, since the complaint was referred to a Committee on or about 18 August 2004, the unamended definition applied. However, that reference ceased to be effective when the Board referred the complaint to the Tribunal under s 50 of the MP Act, and the proceedings before the Committee came to an end.
What was in fact referred to the Tribunal was the complaint made in terms of the unamended definition, and even the amended complaint dated 29 September 2005 was in terms of the unamended definition. I have considered whether this involves any procedural or other difficulty or error; and in my opinion it does not, for the following reasons.
The conduct complained about remained the same, the description of the transgression remained the same, and the definition of what constituted a transgression remained very similar. For that reason, in my opinion, it could not be considered that further consultation was required under s 49 of the MP Act before there was reference to the Board. It was clearly notified to the appellant on 9 February 2006 that the complaint was of unsatisfactory professional conduct according to the amended definition; and this was again made clear before the Tribunal.
In my opinion, it would have been open to the Tribunal to permit a formal amendment of the document before it, pursuant to s 159 and s 161, and cl 5 of Schedule 2 of the MP Act: cf Household Financial Services Limited v Commercial Tribunal of NSW (1995) 36 NSWLR 220. However, in my opinion where the complaint dealt was substantially the same as the written complaint, and the appellant was clearly notified that the amended definition was being relied on, formal amendment was not necessary.
Did the Tribunal address the statutory question?
It was submitted by Mr Connor SC for the appellant that the Tribunal was required to address the questions (1) What was the appellant’s conduct, (2) What did this conduct demonstrate as to his knowledge, skill, judgment and care, (3) What standard was reasonably expected of a practitioner of an equivalent level of training and experience, and (4) Did the appellant’s conduct demonstrate that his knowledge, etc was substantially below that standard. Mr Connor referred to Daskalopoulous v Health Care Complaints Commission [2002] NSWCA 200 at [36] and [56]-[59].
In particular, he submitted that the question asked at [46] of the Tribunal’s judgment, namely, were the quantities of drugs excessive and not clinically justified, was not the question posed by the statute; and the findings which the Tribunal made in finding Part 2 and Part 3 of the particulars made out did not go beyond findings that the prescriptions were excessive, and that they were for a period exceeding two months in breach of s 28 of the Poisons and Therapeutic Goods Act 1966 (PTG Act).
In my opinion, there would have been force in that submission if the judgment of the Tribunal had ended at [58] where the Tribunal expressed satisfaction that the Commission’s case was made out. However, at [59], the Tribunal said this:
59 Dr O’Sullivan submitted that if that part of the complaint were proved it is, in any event, a technical one, or alternatively a trivial one, and not such as to warrant a finding of unsatisfactory professional conduct. We will come to consider that in a moment.
The Tribunal then set out certain matters concerning the conduct of the hearing, including acceptance by the Tribunal of a report of a consultant psychiatrist Dr Durrell tended by the appellant. The Tribunal then said:
66 Dr Durrell gives support for Dr O’Sullivan on the third part of the complaint. That is, he says that in the psychiatric profession the failure to seek approval as required by s 28 was not one of the more significant matters. We have taken account of what he says. Having in mind what all of the psychiatric witnesses have had to say about the breach of the section and having in mind the matters proved in parts 2 and 3 of the complaint, we are of the view that the conduct of Dr O’Sullivan does amount to unsatisfactory professional conduct and we find that in the circumstances as proved his conduct did amount to unsatisfactory professional conduct.
In my opinion, this makes it clear that the Tribunal did not only find that the appellant had prescribed excessive quantities of drugs and had contravened s 28 of the PTG Act, but also found that this conduct amounted to unsatisfactory professional conduct, the definition of which had been correctly set out at [3] of the judgment.
In my opinion, it was not necessary for the Tribunal explicitly to address the four questions set out by Mr Connor. It is sufficient that it identified the conduct and identified what was wrong with it, and addressed and determined whether this demonstrated that the knowledge, skill or judgment possessed or care exercised by the appellant was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. In my opinion, the Tribunal did this.
Were the reasons adequate?
Mr Connor submitted that, if the Tribunal did address the question whether the conduct satisfied the statutory test, it did not give reasons, or adequate reasons, for deciding as it did.
He submitted that this was particularly so in circumstances where the expert opinion most relied on, that of Dr Andrews, was given without his having access to all relevant material (including extensive hospital records) and on an incorrect assumption that the patient had been hospitalised for an overdose on the drug.
Further, Mr Connor submitted, the Tribunal did not identify whether what was demonstrated concerned knowledge or skill or judgment or care; and it did not take into account the appellant’s long experience in dealing with the patient, and the great difficulty of managing this particular patient.
In my opinion, the Tribunal’s reasons were adequate.
In my opinion, it is not always necessary to specify whether the particular shortcoming was in knowledge, skill, judgment or care, although this may be desirable if it is not clear. In this case, it seems clear that the concern of the Tribunal did not go so much to knowledge and skill as to the judgment possessed by the appellant and the care exercised in this particular case. It was not in my opinion necessary that it identify the extent of its concern in relation to each of these elements.
The Tribunal did in its reasons refer to the fact that the patient was hard to manage.
It was open to the Tribunal to rely on the opinion of Dr Andrews, so long as the Tribunal considered the assumed facts were “sufficiently like” the facts which it found: Paric v John Holland (Constructions) Pty Limited (1985) 62 ALR 85 at 88. The hospital records which Dr Andrews did not have was material which the appellant himself did not have when deciding on his course of action, so it would be reasonable for the Tribunal to judge that the facts assumed by Dr Andrews were sufficiently like the facts it found. As regards the Tribunal’s view that the admission to hospital was not for an overdose, it was a matter for the Tribunal to assess the significance of that.
The Tribunal quoted the opinion of Dr Andrews that one aspect of the appellant’s conduct would invite disapproval of the general body of his colleagues, and that another aspect of his conduct was of much more concern to him.
In circumstances where the Tribunal was itself a body with some medical expertise, in my opinion the reasons for its decision do sufficiently appear, and there was no breach of s 165 of the MP Act.
Other matters
Mr Connor objected to the Commission relying on its Notice of Contention. It is not necessary for me to decide this matter. However, I would indicate my opinion that the late service of the Notice of Contention was justified by an amendment of the grounds of appeal, no prejudice to the appellant is shown by the late service, and there is no reason under the principles discussed in Suttor v Gundowda Pty Limited (1950) 81 CLR 418 precluding the point in the Notice of Contention being raised.
Had I come to the view that it was the pre-amendment version of s 36(1)(a) that was applicable, I would have held that this test was more readily satisfied. If a medical practitioner’s knowledge, skill, judgment and/or care is found to be significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, it would in my opinion be a fortiori that this knowledge, skill, judgment and/or care would not be adequate. Accordingly, I would have held that there had been no miscarriage of justice.
ORDERS
For those reasons, in my opinion the appeal should be dismissed with costs.
HANDLEY AJA: I agree with Hodgson JA.
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LAST UPDATED:
13 November 2008
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