O'Sullivan v NSW Medical Board
[2010] NSWADT 75
•22 March 2010
CITATION: O’Sullivan v NSW Medical Board [2010] NSWADT 75
This decision has been amended. Please see the end of the decision for a list of the amendments.DIVISION: Equal Opportunity Division PARTIES: APPLICANT
RESPONDENT
Brendan Thomas O’Sullivan
NSW Medical BoardFILE NUMBER: 091055 HEARING DATES: 22 February 2010 SUBMISSIONS CLOSED: 22 February 2010
DATE OF DECISION:
22 March 2010BEFORE: Chesterman M - Deputy President CATCHWORDS: Summary dismissal of complaint – discrimination on the ground of disability – victimisation LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Health Care Complaints Act 1993
Medical Practice Act 1992CASES CITED: Commissioner of Police, New South Wales Police Service v Orr (EOD) [2001] NSWADTAP 16
G v H (1994) 124 ALR 353
Johnson v Free Spirit Management Pty Ltd [2010] NSWADT 31
Margan v University of Technology Sydney (EOD) [2003] NSWADTAP 65
MT v AA [2009] NSWADT 268
Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20
O’Sullivan v Pehm [2010] NSWADT 57
Purvis v State of New South Wales (2003) 217 CLR 92
Razaghi v Director-General, NSW Department of Health & Anor [2001] NSWADT 4
Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44
Sullivan v State of NSW (NSW Police Force) [2009] NSWADT 2
Waters v Public Transport Corporation (1991) 173 CLR 349REPRESENTATION: APPLICANT
RESPONDENT
Brendan Thomas O’Sullivan
NSW Medical BoardORDERS: 1. The complaint by the Applicant is dismissed pursuant to section 102 of the Anti-Discrimination Act 1977
2. There will be no order for costs in these proceedings unless a party files and serves an application for costs, with supporting submissions, within 28 days. In such event, the opposing party or parties must file and serve submissions in response within a further 28 days. The question of costs will then be determined ‘on the papers’, pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.
REASONS FOR DECISION
Introduction
1 In these proceedings, the Applicant, Dr Brendan O’Sullivan, seeks remedies under the Anti-Discrimination Act 1977 (‘the AD Act’) for harm caused to him by the allegedly unlawful conduct of one or more officers, servants or agents of the Respondent, the NSW Medical Board (‘the Medical Board’). He claims that the Medical Board is vicariously liable for this conduct.
2 On 18 November 2008, Dr O’Sullivan lodged a complaint with the Anti-Discrimination Board (‘the ADB’). By a letter dated 10 June 2009, following investigation of the complaint by the ADB and an unsuccessful attempt to resolve it by conciliation, the President of the ADB (‘the President’) referred it to the Tribunal. The accompanying Report by the President included the ADB’s summary of the issues raised by the complaint and copies of its correspondence with Dr O’Sullivan (including his initial letter of complaint) and with the Medical Board.
3 In his complaint to the ADB, Dr O’Sullivan identified Dr Andrew Dix as the respondent to the complaint. In the correspondence put before the Tribunal in these proceedings, Dr Dix is variously described as the Registrar and as the Chief Executive Officer of the Medical Board.
4 At a case conference on 13 August 2009, it was however noted that the ‘correct respondent’ was the Medical Board. Through his solicitor, Mr Robert Eaves, Dr O’Sullivan subsequently concurred with this ruling, on the footing that any allegations of unlawful discriminatory conduct by the Medical Board should be taken to include any such conduct by its officers, servants and agents, including Dr Dix.
5 The present decision relates to an application by the Medical Board, made on 12 February 2010 and heard ten days later, for an order under section 102 of the AD Act striking out the whole of Dr O’Sullivan’s complaint.
6 Section 102 of the AD Act states that the Tribunal, at any stage in proceedings relating to a complaint, may dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92(1)(a)(i) or (ii) or (b). So far as relevant, the grounds set out in these provisions within section 92 are as follows:-
(a) the President is satisfied that:
(ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or…
(i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or
(b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint…
7 At the hearing on 22 February 2010, Mr Lynch, counsel for the Medical Board, identified the grounds of the Board’s application under section 102 as being that Dr O’Sullivan’s claims (a) were misconceived; (b) were lacking in substance; (c) did not disclose any possible contravention of the AD Act; and/or (d) were such that no further action should be taken in respect of the complaint.
8 As the decision on this application is whether Dr O’Sullivan’s complaint should be summarily dismissed, it involves the exercise of an ‘interlocutory function’ as defined in section 24A(1)(h) of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’) and may be made by a single member of the Tribunal, sitting alone.
The scope of Dr O’Sullivan’s complaint to the Tribunal
9 In the President’s Summary of Complaint, which forms part of the Report forwarded to the Tribunal, Dr O’Sullivan’s complaint was summarised as follows:-
Dr O’Sullivan alleges that the NSW Medical Board discriminated against him by obliging him to attend a psychiatric examination under section 54 of the Medical Practice Act 1992. He claims that this was done on the basis of his past episode of depression in 1995, or on the basis of current presumed disability.
10 The President’s Summary stated also that the complaint appeared to fall within sections 49A, 49B, 49J, 49M, 53 and 54 of the AD Act. Sections 49J and 49M, in conjunction with sections 49A and 49B, respectively define unlawful discrimination in relation to professional or occupational qualifications and unlawful discrimination in the provision of goods or services, in each case on the ground of disability or presumed disability. Section 53 renders principals and employers liable for contraventions of the AD Act committed by their agents or employees except where the relevant conduct was not authorised expressly or by implication. Section 54 of the AD Act establishes a defence of statutory authority, on which (the Summary noted) the Medical Board had evinced its intention to rely.
11 The letter by which the President referred the complaint to the Tribunal stated that ‘Dr O’Sullivan’s allegation of victimisation by the NSW Medical Board was not accepted for investigation’. The notes of case conferences held in the Tribunal do not contain any mention of victimisation or of section 50 of the AD Act, in which victimisation is defined and stated to be unlawful.
12 In his Points of Claim, which were filed on 5 February 2010 and replaced an earlier version filed on 4 December 2009, Dr O’Sullivan claimed that other alleged conduct of employees of the Medical Board, notably Dr Dix, contravened the AD Act. Many of these allegations were not particularised.
13 One instance of allegedly unlawful conduct was however described with a reasonable degree of specificity. This was to the effect that in or about June 2008 the Medical Board, in response to recommendations put to it by officers of the Health Care Complaints Commission (the ‘HCCC’), had caused two ‘minor’ complaints about the professional conduct of Dr O’Sullivan to be ‘escalated’ to the level of a Medical Tribunal inquiry. These complaints had been made to the HCCC by Dr Diana Horvath, with respect to Dr O’Sullivan’s treatment of a former patient, ‘MA’, in 2004 and by another former patient, ‘EL’, in 2006. Previously, each of them had been prosecuted before a Professional Standards Committee (‘PSC’) of the Medical Board. Associated with Dr O’Sullivan’s assertions about this matter were allegations that at key meetings within the Medical Board certain participants had failed to declare ‘conflicts of interest’ when they were under an obligation to do so.
14 Neither before nor during the hearing on 22 February 2010 did Dr O’Sullivan apply under section 103 of the AD Act for his complaint to be amended so as to include any of these additional allegations. On this ground, Mr Lynch submitted that I should not take any account of them in determining the Medical Board’s application for summary dismissal. Having regard, however, to the provision in section 103 that the Tribunal may amend a complaint on its own motion and to the fact that the Medical Board has been aware of the nature of these allegations for a significant period of time, I am not prepared to put them to one side. For the purposes of the Medical Board’s application, I will treat them as a component of Dr O’Sullivan’s complaint in these proceedings.
Principles governing applications for summary dismissal
15 It is established by a long line of decisions of the Appeal Panel and the Equal Opportunity Division of this Tribunal that the power to dismiss a complaint summarily under section 102 of the AD Act should be exercised ‘with exceptional caution and only if the circumstances clearly warrant such action’ (see e.g. Johnson v Free Spirit Management Pty Ltd [2010] NSWADT 31; Sullivan v State of NSW (NSW Police Force) [2009] NSWADT 2 at [15] and the cases cited in that paragraph). It is established also that the need for caution is ‘even more apparent’ when, as in the present case, an application for dismissal has been made before the complainant’s evidence has been adduced at the substantive hearing (see e.g. Commissioner of Police, New South Wales Police Service v Orr (EOD) [2001] NSWADTAP 16 at [34]). In such a case, the Tribunal must assume that the complainant’s case can be established by evidence – i.e., that his or her allegations must be taken ‘at their highest’ (see e.g. Razaghi v Director-General, NSW Department of Health & Anor [2001] NSWADT 4 at [10]).
16 In Razaghi, the Tribunal dismissed an application by the respondents for dismissal of the whole of the applicant’s complaint under section 111 of the AD Act (this was the predecessor of section 102). But it made orders significantly limiting the number of allegations on which the applicant would be permitted to lead evidence. Its explanation of its reasons for so deciding included the following passages (at [22], [24] and [37 – 38]):-
24 As with civil litigation generally, the ‘pleadings’ often fall well short of the ideal. This results, as has happened in this case, in the respondents not being properly informed of the claims against them, and in the Tribunal not being apprised of the questions which it must resolve and the disputes which it must determine. The governing legislation, the Tribunal Act, makes it clear that the Tribunal should not permit form to prevail over substance (see s73(3)). At the same time, the Tribunal Act stipulates that we should strive to ensure that the respondents understand the allegations against them, so that the respondents may choose whether to admit those allegations or defend them (see s73(4)(a)). It sometimes becomes necessary to strike a balance between the overlapping objectives of informality, procedural fairness and efficiency. That balance can be particularly difficult to achieve in cases such as the present where the applicant is unrepresented, the allegations are both grave and voluminous, the stakes are high and the claims made against the respondents are expressed at a level of generality not usually associated with legal proceedings. Striking that balance and determining the extent to which the Tribunal can and should go to assist an unrepresented applicant to frame his/her case have been particularly difficult issues to resolve in this instance.22 The authorities make it clear that, whilst the initial complaint to the President… must allege a contravention of the Act by another person, “it need not allege the relevant facts with the particularity of an indictment or a pleading” ( Langley v Niland [1981] 2 NSWLR 104 at 107, per Hunt J). More recent cases have taken a particularly liberal view of the required minimum content of the initial complaint. The Federal Court, when dealing with similar provisions in Commonwealth anti-discrimination statutes concerning complaints to the Human Rights and Equal Opportunity Commission, has determined, on a number of occasions, that a complaint is valid if it contains nothing more than a broad allegation that another person has contravened the relevant Act… An Appeal Panel of this Tribunal took a similar view in Commissioner of Police v Orr [2001] NSWADTAP 16 at paragraphs 14 to 16.
38 The authorities make it clear, however, that we should not deny the applicant the opportunity to present his case at a hearing if we can identify an arguable case from the material before us. It has been difficult to determine the extent to which the Tribunal should assist the applicant to identify an arguable case by presenting some of his allegations in such a way that they constitute allegations of contraventions of the Act which can be understood and answered by the respondents, as well as fairly tried by the Tribunal. It is of relevance that despite considerable endeavours on his behalf, the applicant is not legally represented. We are also mindful of the fact that the allegations made by the applicant are complex, grave and important…37 Much of the material in both Points of Claim is lacking in substance, in the sense that many allegations are expressed with such a degree of generality that they are essentially meaningless for the purpose of determining whether they comprise claims that either or both respondents have contravened any of the provisions in the Act. It is not appropriate to permit these allegations to proceed to hearing in this case, for the respondents would have no reasonable idea of the allegations against them and the Tribunal would be unaware of the issues which it has to determine. The applicant has already filed thousands of pages of documents with the Tribunal, without in any way indicating their relevance or the claims they support. If the applicant were given the opportunity to proceed directly to hearing, without refining his claims, it is highly likely that the time and expense associated with sifting through this material and determining its relevance would be extraordinary.
17 In Margan v University of Technology Sydney (EOD) [2003] NSWADTAP 65, a case cited to me by Mr Eaves, the Appeal Panel said (at [9 – 15]):-
9 A complaint can be dismissed under s 111(1) if the Tribunal is satisfied that it is “frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained”. The words “frivolous, vexatious, misconceived or lacking in substance” were interpreted, in a slightly different but analogous context, by Hunt J in Langley v Niland [1981] 2 NSWLR 104. At 107 Hunt J held that those words relate to the “insufficiency or to the absence of merit of the factual basis for the allegations made in the complaint rather than to whether the complaint is one within the provisions of the Act at all.” However, Hunt J added that the words “for any other reason” include the reason that the complaint does not disclose a contravention of the Act. A complaint which relied on a ground not covered by the AD Act or, to use Hunt J’s example, a complaint which fell within one of the exceptions in the Act, would not disclose a contravention.
10 The failure of the complaint to disclose a contravention of the Act is analogous to the inherent and/or statutory power of courts to dismiss proceedings when the pleadings fail to show a reasonable cause of action. For example, Part 13, rule 5 of the Supreme Court Rules 1970 allows the Court to stay or dismiss proceedings where no reasonable cause of action is disclosed. The rule gives the Court a discretionary power to dismiss the plaintiff’s case when it is so weak that to permit the proceedings to go to trial would be futile: Peter Kent Developments Pty Ltd v Australia & New Zealand Banking Group Ltd (SC (NSW), Hunt J, 6 May 1980, unreported). Ritchie’s Supreme Court Procedure NSW (Peter Taylor SC ed, Butterworths 1984) notes at 2325 that “The test to be applied has variously been described as whether the matter is ‘so obviously untenable that it cannot possibly succeed’, ‘manifestly groundless’, ‘so manifestly faulty that it does not admit of argument’, one which ‘the court is satisfied cannot succeed’, one where under no possibility can there be a good cause of action’”, or one which ‘would involve useless expense’ ( General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129; Pannizutti v Trask (1987) 10 NSWLR 531 at 536; Rajski v Powell (1987) 11 NSWLR 522 at 524; Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 942).
12 Mr Margan relied on the decision in Z (No. 3) v University of A ([2001] NSWADT 138 revised - 16/04/2002) which made a similar point. In the course of its decision, the Tribunal said, at [45]:11 Summary dismissal is not appropriate where there is a serious question of fact to be determined: Spellson v George (1992) 26 NSWLR 666 or where a serious question of credit is involved. Importantly, if factual issues are likely to be affected by evidence in the possession of the defendant, that matter alone may make it inappropriate to dismiss the matter. Material in summonsed documents or answers on cross examination may lead to the proof of factual matters about which the plaintiff has no direct evidence. ( Wickstead v Browne (1992) 30 NSWLR 1). The commonly-stated test of ‘taking the evidence at its highest’ needs to be understood in this context. The evidence that is available to a Tribunal when assessing whether to dismiss a complaint before the completion of an inquiry is not all that a Tribunal must take into account. That evidence, even taken ‘at its highest’ may not be enough to withstand an application for dismissal. But the nature of proof of discrimination complaints in many circumstances is such that it will often be appropriate to have regard as well to the reasonable possibility that documents and evidence to be led by the respondent, and cross-examination of the respondent’s witnesses, will provide the necessary causative link between the conduct complained of and the ground for that conduct having occurred.
The Tribunal is aware of the difficulties associated with establishing a case of unlawful discrimination in the absence of direct evidence. Often the primary source material from which inferences might properly be drawn to prove an applicant's case is in the possession of the respondent. Often too, the only mode of proof available to an applicant is to rely upon a concatenation of circumstances from which an inference might properly be drawn of unlawful discrimination : see the remarks of Graham DCJ in Atkins & Ors v Director General of Education which were quoted on appeal by Mahoney J (1989) EOC 92-263 at 77, 625-77, 626.
13 Wilson J in Assal v Dept. of Health, Housing & Community Services (1992) EOC 92-409 at p.78,900 rejected the onerous test of “no real prospect of success.” His Honour said at “A claim which presents no more than a remote possibility of merit or which does no more than hint at a just claim would ordinarily, I think, be found to be lacking in substance.” That test has been adopted by the Federal Court…
15 The Tribunal has warned that extreme caution must be exercised when determining a s 111(1) application prior to the substantive hearing. In Orr v Commissioner of Police, New South Wales Police Service [2000] NSWADT 150 the Tribunal rejected a party’s request to deal with the s 111 application prior to the hearing, on the basis that there was no evidence or agreed facts on which the Tribunal could base its decision. Similarly, the Tribunal in Karekar v TAFE Commission of New South Wales [2000] NSWADT 187 expressed the view that particular caution is necessary in cases where a s 111(1) application is made prior to the adducing of the applicant's evidence at the substantive hearing. We agree, but the warning warrants refinement. It is the case that when the s 111 application is, in effect, a challenge to the sufficiency of the evidence available to support the complainant’s version of events, the application would most usually be made only after the complainant’s case has been heard and, even then, subject to the reasonable apprehension of what might be revealed in the respondent’s case, as we discussed above. But when the s 111 application is, instead, one that goes to the Tribunal’s jurisdiction – one that claims, for example, that the allegations even if proved do not identify conduct proscribed by the Act, or that the respondent is exempt from the provisions of the Act – then it will often be appropriate for that application to be made at the earliest opportunity so as to save time and cost.14 However, Carr J in McGlade v Human Rights & Equal Opportunity Commission [2000] FCA 1477 (18 October 2000) distinguished Wilson J’s approach in Assal because in those cases the “complainants had had their day before the Commission.” In McGlade , the proceedings were at a preliminary stage when they were dismissed. In those circumstances, Carr J endorsed the position taken by the Court of Appeal in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102. In that case Ormiston JA said that “there can be no satisfactory way of determining that a complaint should be dismissed at a preliminary stage, unless it can be demonstrated, either from the materials by which the complainant has instituted the claim or by reference to facts which would undoubtedly deny the complainant relief, that the complaint is so hopeless that it should be summarily brought to an end.” We agree with and adopt Ormiston JA’s approach.
18 In applying these principles, it is convenient to deal first with Dr O’Sullivan’s allegations regarding the ‘escalation’ of the hearing of the two complaints made in 2004 and 2006 against him from proceedings before a PSC to an inquiry by the Medical Board. I will then consider his allegation, made in his complaint to the ADB, that he was unlawfully required to undergo a psychiatric examination.
19 Dr O’Sullivan’s case regarding these two matters was contained in his correspondence with the ADB and in two affidavits sworn by him on 1 December 2009 and 19 February 2010 respectively.
The decision to prosecute the 2004 and 2006 complaints in the Medical Tribunal
20 Much of the evidence put before me on this matter was also put before the Tribunal in other proceedings commenced by Dr O’Sullivan and was reviewed at some length in its decision in O’Sullivan v Pehm [2010] NSWADT 57. That decision was published to the parties on 23 February 2010, the day following the hearing before me.
21 The proceedings in O’Sullivan v Pehm were brought by Dr O’Sullivan under the AD Act against three respondents: Mr Kieran Pehm, the Chief Executive Officer of the HCCC; Ms Karen Mobbs, the Director of Proceedings in the HCCC; and the HCCC itself. He alleged that these three respondents, in determining that the 2004 and 2006 complaints against him should be referred to the Medical Tribunal, had ‘victimised’ him within the meaning of section 50 of the AD Act. His complaint to the ADB incorporating these allegations was made on 21 August 2008.
22 In its decision in O’Sullivan v Pehm, the Tribunal upheld an application by the respondents that Dr O’Sullivan’s complaint should be dismissed under section 102 of the AD Act. It determined, on grounds partly explained below, that the complaint was both misconceived and lacking in substance.
23 As outlined in Dr O’Sullivan’s Points of Claim and depicted in the material put before me, his claim in the present proceedings with regard to the decision to ‘escalate’ the 2004 and 2006 complaints against him to the level of a Medical Tribunal inquiry is essentially that the Medical Board, by virtue of its participation in this decision, had also engaged in victimisation under section 50.
24 The following summary of evidence contained in the Tribunal’s decision in O’Sullivan v Pehm at [26 – 31, 34 – 35] may appropriately be reproduced here, since it is apparent that the same significant items of correspondence were tendered to the Tribunal in both sets of proceedings:-
26 On or about 2 April 2004, a Dr Horvath made a complaint to the HCC Commission in respect of a former patient of the applicant. The former patient is referred to in this decision as “MA”. It was not in dispute (for the purpose of the application) that MA suffers from chronic schizophrenia.
27 On or about 4 September 2006, another former patient, referred to in this decision as “EL”, made a complaint to the HCC Commission against the applicant in relation to his prescription to her of lithium tablets. On its receipt, the complaint was assessed in consultation with the Medical Board. On or about 23 November 2006, a decision was made to investigate the complaint.
28 On or about 13 February 2007, the Conduct Committee of the NSW Medical Board determined that the complaint against the applicant in respect of the former patient “MA” proceed before a Professional Standards Committee.
29 On or about 24 September 2007, the applicant lodged a disability discrimination complaint with the ADB on behalf of his patient MA concerning the manner in which the HCC Commission had dealt with a complaint by MA in respect of Dr Horvath.
31 On or about 11 March 2008, the Conduct Committee of the NSW Medical Board determined that the complaint against the applicant in respect of the former patient “EL” proceed before a Professional Standards Committee. The Conduct Committee decided as follows:30 On or about 24 September 2007, the applicant also lodged a disability discrimination complaint with the ADB on behalf of a Mrs Marilyn Lewis concerning the manner in which the HCC Commission had dealt with Mrs Lewis’ complaint against a Dr Andrews in relation to the death of her son.
“1. The Committee concurred with the Commission’s recommendation [about the complaint of EL] to refer the matter to the Director of Proceedings.3. In light of the current complaint [by MA] before a Professional Standards Committee, the Director of Proceedings be requested to consider joining this matter to the current complaint.” …2. The Committee considered that on the basis of the information before it a Professional Standards Committee is the appropriate forum for hearing the matter.
35 On 16 May 2008, the Director of Proceedings recommended that the EL complaint be referred to the Medical Tribunal.
34 On 15 May 2008, the Commission, after consultation with the Medical Board, decided to refer the EL complaint to the Director of Proceedings to determine whether or not to prosecute the matter before a disciplinary hearing.
25 A meeting of the Conduct Committee of the Medical Board (hereafter ‘the Conduct Committee’) held on 27 May 2008 was described in the minutes as the ‘Conduct Committee Consult meeting with the Health Care Complaints Commission and Director of Proceedings’. Those present included Dr Dix, Mr Pehm and Ms Mobbs. No conflicts of interest were declared. The minutes included the following entry relating to Dr O’Sullivan: ‘The Director of Proceedings informed the Committee that this matter should be ready for consult at the June 2008 meeting.’
26 On 28 May 2008 Ms Mobbs, the Director of Proceedings in the HCCC, wrote in the following terms to Dr Dix:-
Re: Complaints against Dr Brendan O’Sullivan
Following consideration of the complaint made against Dr O’Sullivan by [EL], and taking into account the matters set out in s.90C of the Health Care Complaints Act 1993 (“the act”), I propose to make a determination pursuant to s. 90B(1)(a) of the Act that the Commission prosecute a complaint against Dr O’Sullivan.
Whilst the matters is unlikely to result in de-registration or suspension, I am of the view that it is nonetheless appropriate that this matter should be heard before a Medical Tribunal. In reaching this view, I have had regard to the nature of the complaint, which is clinical in nature and which also involves boundary issues that relate to the treatment of a patient who is the partner of Dr O’Sullivan’s current barrister. I note that given the delicate and unusual nature of this part of the complaint, that it would seem appropriate that the matter be dealt with in a jurisdiction that allowed both Dr O’Sullivan and the Commission to be legally represented by independent counsel.
I have also had regard to the other complaints against Dr O’Sullivan, namely the complaint against Dr O’Sullivan that was found proved by a Medical Tribunal in December 2006 and which is still subject to an appeal by Dr O’Sullivan (“the first complaint”). I have also had regard to the current complaint against Dr Sullivan that was brought before a Professional Standards Committee (PSC) and which relates to the patient [MA] (“the second complaint”).
I have also had regard to the history of these two complaints in that they were both initiated before PSC’s. The first complaint was ultimately referred to a Tribunal by the Medical Board. I will deal further with the forum of the second complaint below and my view that it too should be referred to a Medical Tribunal, but note that there have been significant delays with having the second complaint heard by the PSC and that there has already been an appeal to the Medical Tribunal with the prospect of further appeals foreshadowed. In my view, the public interest would best be served by having the complaint by [EL] dealt with by the Medical Tribunal as any legal issues could be more immediately dealt with by the Chairperson or Deputy Chairperson, a District Court Judge. Further, there is an increased level of procedure in the Medical Tribunal which would more easily accommodate any issues that may be raised by the parties in relation to witnesses and summonses.
Second Complaint
I note that there have been numerous delays in having the second complaint heard by a PSC and that an appeal has recently been finalised by the Medical Tribunal. Whilst the matter has been remitted back to the PSC, it seems that Dr O’Sullivan has already foreshadowed further appeals in the matter in the event that certain orders are not made by the PSC. It is noted that the second complaint relates to the patient [MA], whom Dr O’Sullivan has already indicated is to be called as a witness by him. This in itself has the potential to give rise to a number of issues, not least is a concern in relation to [MA’s] mental health and his ongoing involvement in this matter.
In my view it is in the public interest for the details of both complaints (on the basis that the Board agrees with my proposal for the complaint by [EL]) to be before the Tribunal. For the reasons outlined above in relation to the complaint by [EL], the legal and procedural issues which have already been raised by Dr O’Sullivan in relation to the second complaint would also be best dealt with by a Tribunal.Moreover, [MA] has made a number of complaints to the Commission in relation to various parties who the Commission has submitted have no relevance to the complaint but who Dr O’Sullivan wishes to have called as witnesses. It also appears that [MA] has obtained and apparently provided to Dr O’Sullivan a document that purports to be a statutory declaration from another party but which is in fact false. There have been other proceedings lodged by [MA] against the Commission in which Dr O’Sullivan has also had some involvement. In these circumstances, I am of the view that it would be in the public interest for the second complaint to be conducted in a public forum where the conduct of both parties, especially that of the Commission, is totally transparent and open to public scrutiny. It would also allow both parties to be represented by experienced and independent counsel.
For the reasons outlined above, I propose the following:
1. To refer the second complaint to the Medical Tribunal.
2. To prosecute the complaint by [EL] before a Medical Tribunal.
3. To join the [EL] complaint with the second complaint.
Given that the second complaint is to shortly be re-listed before the PSC, your urgent advice regarding consultation would be appreciated. Should you require further information, please do not hesitate to contact me…
27 On 10 June 2008, the Conduct Committee resolved as follows: (a) that it concurred with the proposal made by the Director of Proceedings that the Commission should prosecute the EL complaint before the Medical Tribunal; (b) that the hearing of the MA complaint currently taking place before a PSC should be terminated and the complaint should be referred to the Medical Tribunal pursuant to section 179 of the Medical Practice Act 1992 (‘the MP Act’); and (c) that the two complaints should be joined.
28 In a letter dated 30 June 2008 to Dr O’Sullivan, Ms Mobbs advised him that following consultation with the Medical Board and taking into account the matters set out in section 90C(1) of the Health Care Complaints Act 1993 (‘the HCC Act), she had determined pursuant to s 90B(1)(a) of this Act that the HCCC should prosecute the 2004 and 2006 complaints against him jointly before the Medical Tribunal.
29 At a meeting of the Conduct Committee on 9 September 2008, the Committee ‘noted’ the signed formal complaint made by EL. In the course of a discussion of this complaint, it was stated (a) that members of the Committee, not the Secretariat, exercised the decision-making functions of the Board, (b) that while Committee members were required to be vigilant in relation to potential conflicts of interest, members of the Secretariat were unlikely to find themselves in a position of conflict when attending a Committee meeting and (c) that the Committee had no evidence of any identified conflicts of interest relating to the Committee’s statutory obligation to deal with complaints in relation to Dr O’Sullivan. Dr Dix was in attendance at this meeting and did not declare any conflict of interest.
The Medical Board’s direction to Dr O’Sullivan to undergo a psychiatric examination
30 The allegations made by Dr O’Sullivan in his complaint to the ADB, as developed in his Points of Claim and depicted in the material put before me, may be summarised as follows.
31 At a meeting on 14 October 2008, the Conduct Committee resolved that Dr O’Sullivan be required to undergo an examination by a Board-nominated psychiatrist, pursuant to section 54 of the MP Act. On 30 October 2008, a Legal Officer employed by the Board, Ms Miranda St Hill, communicated this decision to him, indicating that the examining psychiatrist would be asked to assess whether he suffered from any physical or mental impairment, disability, condition or disorder that detrimentally affected his physical or mental capacity to practise medicine.
32 Dr O’Sullivan attended for assessment on 5 December 2008. Following consideration of a report submitted to it by the examining psychiatrist, the Medical Board decided that it would take no further action as a result of the report. It notified Dr O’Sullivan of this decision by a letter dated 21 January 2009.
33 According to Dr O’Sullivan, the members of the Conduct Committee were prompted to require this psychiatric examination by Dr Dix, acting in collaboration with Mr Pehm. The alleged motive for this behaviour of Dr Dix and Mr Pehm was one of retaliation, as was demonstrated by the following prior events:-
(a) Dr Dix knew, and had advised Mr Pehm, that in 1995 Dr O’Sullivan had been in hospital for a short period on account of depression, but had not suffered any psychiatric disorder since then.
(b) Dr Dix had a close association with Dr Diana Horvath, who was an opponent of Dr O’Sullivan in litigation on a number of industrial matters.
(c) In June 2006, Dr O’Sullivan lodged a complaint with the Office of the Legal Services Commissioner about the conduct of Ms Karen Mobbs in her capacity as Director of Proceedings in the HCCC.
(d) In July 2007, Dr O’Sullivan was a co-complainant with Mrs Marilyn Lewis, in a complaint to the ADB about alleged conduct of the HCCC.
(e) In September 2007, Dr O’Sullivan assisted a schizophrenic patient, ‘MA’, to make a complaint to the HCCC about his treatment in gaol. The HCC rejected this complaint.
(f) In November 2007, Dr O’Sullivan assisted MA to complain to the ADB about this decision by the HCCC.
34 Dr O’Sullivan alleged also that the Conduct Committee’s resolution to require him to be psychiatrically examined was purportedly based in part on allegations contained in a complaint to the HCCC made about him in June 2008 by Ms St Hill. The allegations, later found to be without foundation, were to the effect that when moving out of consulting rooms in Sydney he had carelessly left confidential material relating to his patients in the rooms.
35 Further allegations by Dr O’Sullivan relating to this resolution by the Conduct Committee were as follows: (i) Ms St Hill deliberately attempted to present a misleading and derogatory assessment of his mental capacity to the Committee, in order to induce it to pass this resolution; (ii) Dr Dix encouraged this behaviour by Ms St Hill; (iii) the Committee did not show due diligence in considering the submissions put in support of the resolution; (iv) although at the meeting of the Committee on 14 October 2008 Dr Dix was not present when the situation with regard to Dr O’Sullivan was discussed, he was present during other parts of the meeting; (v) at the time of the meeting, Dr Fearnside, the Chair of the Committee, was aware of the conflicts of interest affecting certain officers of the Medical Board and also certain officers of the HCCC who were involved with the Board, but failed to disclose these conflicts of interest to members of the Committee; and (vi) Ms St Hill failed to provide to the examining psychiatrist certain relatively recent medical reports and other information that would have been of assistance to Dr O’Sullivan’s credibility.
36 The evidence put before me included two items of particular significance, which I will now describe.
37 The first is the minutes of the Conduct Committee’s meeting on 14 October 2008, at which the resolution requiring Dr O’Sullivan to attend a psychiatric examination under section 54 of the MP Act was passed. Mr Dix was absent during the part of the meeting when Dr O’Sullivan’s position was considered. Ms St Hill was present during this part of the meeting.
38 These minutes indicate that a lengthy discussion of this matter took place. The Committee considered whether there was sufficient evidence suggesting that Dr O’Sullivan’s professional behaviour constituted a risk to the health and safety of his patients, warranting a decision under section 66 of the MP Act. Under this section (of which the relevant parts are reproduced below), the Medical Board may suspend a medical practitioner from practice for a period not exceeding eight weeks or may impose conditions on his or her registration as a practitioner. The Committee decided to defer its decision on action under section 66 until it had received the report from the psychiatrist nominated by the Board.
39 During the discussion, it was claimed that Dr O’Sullivan’s correspondence contained ‘ample material to question his judgment and current health status’. A number of alleged reasons for so doing were suggested. As recorded in the minutes, they included the following: ‘grandiosity/imperiousness’; ‘poor judgment’; ‘sense of persecution/disproportionate responses to issues’; ‘retaliatory conduct’; ‘strong tendency to self-deceive’; ‘possibly manic behaviour’; ‘patently lacks objectivity’; and ‘poor judgment in his relationship with the Board and other authorities’.
40 Although in one of these affidavits, Dr O’Sullivan claimed that many of these epithets were used by Ms St Hill, the minutes do not attribute them to anyone. At the hearing on 22 February 2010, Mr Eaves acknowledged that nothing in the evidence put before me supported this claim by Dr O’Sullivan.
41 In a section headed ‘Update of Dr O’Sullivan’s Board matters and management of his file’, the minutes stated as follows:-
Dr O’Sullivan states that he has made complaints to ICAC, the Ombudsman, the Legal Services Commissioner, the Anti-Discrimination Board, the Privacy Commissioner and the Administrative Decisions Tribunal about Board staff. He broadcasts such complaints widely and inappropriately.
42 In addition to requiring the psychiatric examination and deferring consideration of action under section 66 until the report on this examination had been received, the Conduct Committee resolved that Dr O’Sullivan’s complaints about Board staff should be declared ‘vexatious’ and that a letter ‘concerning his status as a maker of vexatious complaints’ should be prepared and forwarded to him by the Crown Solicitor.
43 The second item of evidence of particular significance is a letter dated 13 November 2008 from Mr Pehm to Dr Dix. In it, Mr Pehm expressed on the HCCC’s behalf its concern that Dr O’Sullivan ‘suffers from a possible psychiatric impairment’ and its opinion that ‘it would be appropriate to arrange for Dr O’Sullivan to be psychiatrically assessed’. He criticised numerous aspects of Dr O’Sullivan’s conduct, including the writing of ‘numerous emails and letters’ to the HCCC and the lodgement of complaints about the HCCC and its staff with the Office of the Legal Services Commissioner, the Minister for Health and the Premier. He alleged that a named doctor was not prepared to give evidence to the Medical Tribunal at the hearing of the 2004 complaint because of fears for himself and his family.
44 A matter of particular relevance mentioned in this letter was that Dr O’Sullivan had ‘recently initiated two sets of proceedings in the Administrative Decisions Tribunal against the [HCCC]’ and had ‘involved himself in [MA’s] complaint against the [HCCC] to the Anti-Discrimination Board in September 2007, writing a detailed statement of complaint on behalf of [MA]’.
Dr O’Sullivan’s claims of victimisation
45 Although the ADB treated Dr O’Sullivan’s complaint as one alleging unlawful discrimination on the ground of disability and did not investigate his claim of victimisation, the latter topic was the primary focus of discussion between counsel and myself at the hearing on 22 February 2010. Mr Eaves, in making submissions on Dr O’Sullivan’s behalf, had very little to say on the former topic. For this reason, and because Dr O’Sullivan’s claim of victimisation embraced both the ‘escalation’ of the two complaints against him to a Medical Tribunal inquiry and the direction to attend a psychiatric examination, I will discuss victimisation first.
46 The ingredients of a claim of unlawful victimisation under the AD Act are set out as follows in section 50:-
(1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has:50 Victimisation
(a) brought proceedings against the discriminator or any other person under this Act,(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,
(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or
(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.
47 At the hearing of the Medical Board’s application under section 102, I suggested to the parties’ representatives that if Dr O’Sullivan had a case against the Medical Board under section 50, it might be formulated as follows: (a) during the relevant period, there was close contact between the Medical Board and the HCCC so far as their respective dealings with Dr O’Sullivan were concerned; (b) the concurrence of the Conduct Committee (on 10 June 2008) with the HCCC’s proposal to elevate the 2004 and 2006 complaints against him to a Medical Tribunal inquiry and the Committee’s decision (on 14 October 2008) to require him to attend a psychiatric examination were consequences of this interaction; and (c) one of the motivations underlying the actions of relevant employees of the HCCC in seeking to influence the Medical Board to play the role that it did in these two episodes was, as the relevant employees of the Board knew, that Dr O’Sullivan had been involved in two complaints made to the ADB in September 2007 about the conduct of the HCCC. The ‘two complaints’ just mentioned related to the HCCC’s treatment of his former patients MA and Ms Lewis: see above at [24] and [33].
48 Mr Eaves indicated in response that a formulation along these lines represented a ‘fair summary’ of Dr O’Sullivan’s case under section 50. He argued further that the requirement that Dr O’Sullivan should have suffered ‘detriment’ as a result of the conduct claimed to amount to victimisation was satisfied. The ‘escalation’ of the two complaints made against Dr O’Sullivan to a Medical Tribunal inquiry would, he submitted, make the process of determination more expensive and time-consuming and would cause damage to Dr O’Sullivan’s reputation by making the alleged conduct complained of appear more serious than it actually was. The requirement to be psychiatrically examined occasioned expense and was damaging to Dr O’Sullivan’s reputation and sense of wellbeing.
49 Mr Eaves maintained that in these circumstances it was essential that Dr O’Sullivan’s complaint of victimisation should proceed to a full hearing, at which all relevant evidence relating to these allegations could be brought forward and properly evaluated. It was accordingly not a case in which, having regard to the strict criteria against which applications for summary dismissal under section 102 must be assessed, the circumstances were such as to ‘clearly warrant’ an order of this nature.
50 The principal contentions raised by Mr Lynch in opposition to this line of argument were fourfold. They were as follows.
51 First, there was no specific allegation in the Points of Claim, and indeed no evidence, that at the time of the Medical Board’s participation in the two decisions claimed by Dr O’Sullivan to amount to victimisation, any relevant officer of the Board knew or suspected that he had been involved in the two complaints made in September 2007 to the ADB against the HCCC. The first time that either of these complaints was mentioned in correspondence between the Medical Board and the HCCC was in Mr Pehm’s letter to Dr Dix outlined above at [43 – 44]. This was written on 13 November 2008, after the two decisions had been made. Similarly, Mr Lynch argued, no claim of victimisation could be based on Dr O’Sullivan’s complaint to the ADB about the Board’s own conduct, because this complaint was made on 18 November 2008. These contentions showed that a vital component of victimisation, as defined in section 50(1), had not been sufficiently alleged and could not be established.
52 Secondly, the decision to ‘escalate’ the 2004 and 2006 complaints against Dr O’Sullivan to a Medical Tribunal inquiry was taken by the HCCC – or more precisely, the Director of Proceedings (Ms Mobbs) – not by the Medical Board. The role of the Board was expressly confined by section 90B of the HCC Act to participating in consultation instigated by the Director of Proceedings. It could not be argued that the Conduct Committee had engaged in victimisation merely by concurring at its meeting on 10 June 2008 with the proposal made by the Director of Proceedings that the Commission should prosecute the [EL] complaint before the Medical Tribunal. Furthermore, the Committee’s further decision at that meeting that the [MA] complaint currently before a PSC should be terminated and referred to the Medical Tribunal was required of it by section 179 of the MP Act.
53 It is convenient here to set out the relevant parts of the two sections just referred to:-
Health Care Complaints Act 1993, section 90B:
(1) The following functions of the Commission are to be exercised only by the Director of Proceedings in relation to any complaint referred to the Director by the Commission:90B Functions of Director of Proceedings
(a1) if the Director determines that the complaint should be prosecuted before a disciplinary body by the Commission, to prosecute the complaint before the disciplinary body…(a) to determine whether the complaint should be prosecuted before a disciplinary body and, if so, whether it should be prosecuted by the Commission or referred to another person or body for prosecution,
(3) The Director of Proceedings:
(b) must consult with the appropriate registration authority (if any) before determining whether or not a complaint should be prosecuted before a disciplinary body.
(a) may at any time consult with a registration authority in relation to the exercise of any of the Director’s functions, and
Medical Practice Act 1992, section 179:
(1) A Committee must immediately terminate an inquiry if before or during the inquiry the Committee:…179 Committee must refer certain matters to the Tribunal
(b) becomes aware that the Board or the Commission has referred the complaint or another complaint about the practitioner concerned to the Tribunal….(5) A Committee is to inform the Board when it takes any action under this section.
(3) When the Committee terminates an inquiry, it must refer the complaint to the Tribunal unless it has already been referred to the Tribunal….
54 Thirdly, it could not be said that Dr O’Sullivan has suffered any ‘detriment’, as required under section 50 (1) of the AD Act, as a result of either of the decisions of which he complained. It was not sufficient that in his own opinion he had suffered ‘detriment’. As is established in a number of cases (Mr Lynch cited Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44 at [41 – 42]) a ‘detriment’, while defined broadly as an ‘loss, damage or injury’, must be ‘real and not trivial’, must be defined objectively and not subjectively and must something which a reasonable person would consider to be a detriment. The decision to refer the 2004 and 2006 complaints to a joint hearing before the Medical Tribunal was in fact beneficial to Dr O’Sullivan, for reasons set out in Ms Mobbs’ letter of 28 May 2008 to Dr Dix (see [26] above) and because Dr O’Sullivan would not have to defend himself in two separate hearings. Similarly, the decision to refer him to a psychiatric examination was beneficial to him because the examination dispelled doubts as to his fitness to practise.
55 Fourth and finally, Mr Lynch argued that the references in the Points of Claim to failures by Dr Dix, Mr Pehm or Ms Mobbs to disclose ‘conflicts of interest’ at meetings of the Conduct Committee provided no assistance at all to the argument that he was victimised. Mr Lynch referred here to the observations about conflicts of interest summarised in the minutes of the meeting of 9 September 2008 (see [29] above).
56 In my opinion, the considerations advanced by Mr Lynch, coupled with two further matters that I will now outline, lead clearly to the conclusion that Dr O’Sullivan’s claims of victimisation under section 50 of the AD Act are ‘lacking in substance’ within the meaning of that phrase in section 92(1)(a)(i) (as made applicable by section 102).
57 The first of these two additional considerations stems from the fact that under section 50(1) the person victimised must show that the alleged discriminator subjected him or her to the detriment complained of ‘on the ground that’ the person victimised had taken any of the steps listed in subparagraphs (a) to (d) or that ‘the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them’.
58 In Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 at [18 – 37], an Appeal Panel of the Tribunal, applying the High Court’s decision in Purvis v State of New South Wales (2003) 217 CLR 92, held that a ‘but for’ test previously established in the case law was no longer applicable when interpreting the phrase ‘on the ground of’ in the contexts of both discrimination complaints (for example, under section 49D) and victimisation complaints under section 50. At [26], the Panel quoted the following dictum of McHugh and Kirby JJ in Purvis:-
The weight and course of authority no longer accepts that the "but for" test is the accepted test of causation in the context of anti-discrimination legislation. That is because that test focuses on the consequences for the complainant and not upon the mental state of the alleged discriminator.
59 At [28], the Panel stated its conclusions regarding discrimination complaints in the following terms:-
The question a Tribunal should ask when addressing the causation element of direct discrimination is whether the person’s sex, race, disability, etc (including the extended definitions of those grounds) is at least one of the ‘real’, ‘genuine’ or ‘true’ reasons for the treatment. For that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment. Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant.
60 At [29] and [36], the Panel held that merely because section 4A of the AD Act was applicable to discrimination complaints but not to victimisation complaints it did not follow that the phrase ‘on the ground of’ should be interpreted differently in the two contexts. At [36], it described section 4A as ‘an explanatory provision which does not give the words “on the ground of” an extended meaning beyond their ordinary meaning’. At [37], it concluded that the meaning given to this phrase should in fact be the same in the two different contexts (discrimination complaints and victimisation complaints).
61 In my opinion, the material put before me falls very far short of showing that any knowledge or suspicion that relevant officers of the Medical Board had regarding either or both of the complaints made by Dr O’Sullivan about the HCCC – not about the Board itself – to the ADB in September 2007 constituted one of the ‘real’, ‘genuine’ or ‘true’ reasons why the Board acted as it did in relation to either of the two decisions that amounted, according to him, to victimisation.
62 Dr O’Sullivan claimed in fact that these decisions were prompted by a wide range of other motivations: for example, his complaint to the Office of the Legal Services Commissioner about Ms Mobbs’ conduct. Paradoxically, the fact that he made a number of such complaints to authorities other than the ADB, inducing the Conduct Committee to characterise him as ‘vexatious’, makes it all the harder to rule that he has brought forward any tangible evidence to suggest, let alone to prove, that one of the ‘real’, ‘genuine’ or ‘true’ reasons motivating the Medical Board during 2008 was the fact that he had been involved in the making of two complaints about the HCCC to the ADB in September 2007. My reasoning here may be compared with that of a Tribunal Panel (in which I presided) in MT v AA [2009] NSWADT 268 at [93 – 94].
63 In view of the lack of tangible evidence in the material put before me tending to substantiate this important component of Dr O’Sullivan’s claims of victimisation, it must be assumed that if this case were to proceed to a full public hearing, he or his counsel would seek to obtain such evidence from cross-examination of witnesses at the hearing. These might include people who were present at the relevant meetings of the Conduct Committee. But it must be borne in mind that because Dr O’Sullivan’s allegations against Dr Dix, Mr Pehm and Ms Mobbs impute seriously improper conduct on their part, the Tribunal would have to be ‘affirmatively’ satisfied that the evidence adduced them showed them to be true. As Deane, Dawson & Gaudron JJ said in the High Court decision in G v H (1994) 124 ALR 353 (at 362):
It has been clear since the decision in Briginshaw v Briginshaw that in civil cases the standard of proof is on the balance of probabilities, with due regard being had to the nature of the issue involved so that ``[t]he seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal'’ ((1938) 60 CLR at 362 per Dixon J…). Thus, if there is an issue of ``importance and gravity'’, to use the words of the trial judge, due regard must be had to its important and grave nature.
64 As indicated by the Appeal Panel in Margan v University of Technology Sydney (EOD) [2003] NSWADTAP 65 at [11] (see [17] above), I must ‘have regard… to the reasonable possibility that documents and evidence to be led by the respondent, and cross-examination of the respondent’s witnesses, will provide the necessary causative link between the conduct complained of and the ground for that conduct having occurred’. In the light of what I have just said about the matters to be proved by Dr O’Sullivan, I do not believe that there is any such ‘reasonable possibility’. This is, to repeat a phrase cited by the Appeal Panel in the same case at [13], a claim ‘which presents no more than a remote possibility of merit’.
65 In reaching this conclusion I have taken into account the fact that, as stated above at [41], the minutes of the meeting of the Conduct Committee on 14 October 2008 included the following passage:
Dr O’Sullivan states that he has made complaints to ICAC, the Ombudsman, the Legal Services Commissioner, the Anti-Discrimination Board , the Privacy Commissioner and the Administrative Decisions Tribunal about Board staff . (emphasis added).
66 It is noteworthy that this passage does not make any mention of the complaints that Dr O’Sullivan had made about the HCCC to the ADB. It cannot support an assertion by him that the Committee’s decision requiring him to be examined by a psychiatrist constituted reprisals against him for having complained about the staff of the Medical Board to the ADB and/or the Tribunal. The reasons for this are as follows: (a) he has not sought to advance this line of argument in the present proceedings or to bring forward any other evidence to support it; (b) at the time of the meeting, he had not made any such complaints to the ADB or to the Tribunal; and (c) although the minutes state that in correspondence with the Board he had claimed to have made these complaints, they contain no further indication that this claim by him played any significant role in the Committee’s decision.
67 A further matter that I have taken into account in this specific context is that for a significant proportion of the time since these proceedings commenced in the Tribunal, Dr O’Sullivan has not had the benefit of legal representation. As Mr Eaves stated at the hearing before me, he came into the proceedings relatively late.
68 The second additional consideration supporting Mr Lynch’s submissions on victimisation is that in O’Sullivan v Pehm [2010] NSWADT 57 at [67 – 74], the Tribunal held, after a careful examination of the relevant factors, that the decision of the Director of Proceedings in the HCCC to refer the 2004 and 2006 complaints against him to the Medical Tribunal did not subject him to a ‘detriment’ within the meaning of section 50. A determination of this nature is not binding on me, even though in these proceedings I am dealing with precisely the same occurrence. Furthermore, because this judgment of the Tribunal was handed down after the hearing before me, Mr Eaves was not in a position to challenge its reasoning. But in these circumstances, it is open to me to adopt the Tribunal’s reasoning in support of my conclusion that there was no ‘detriment’, and I do so.
69 With regard to Mr Lynch’s accompanying submission that the decision to refer Dr O’Sullivan for a psychiatric examination was likewise beneficial to him (see [54] above), I make no ruling, since this is not necessary for present purposes. I would say only that having regard to the provisions under which the Medical Board acted (the most important of these are set out below) it is a submission that has some merit.
70 For the foregoing reasons, I hold (as indicated earlier) that Dr O’Sullivan’s claims of victimisation under section 50 of the AD Act are ‘lacking in substance’ within the meaning of that phrase in section 92(1)(a)(i) of the AD Act.
Dr O’Sullivan’s claim of unlawful discrimination on grounds of disability
71 As stated above at [10], the President’s Summary of Complaint contained an opinion that Dr O’Sullivan’s allegations regarding the psychiatric examination ordered by the Medical Board constituted a claim of unlawful discrimination (as defined in sections 49A and 49B of the AD Act) in relation to professional or occupational qualifications (under section 49J) and unlawful discrimination in the provision of goods or services (under section 49M), in each case on the ground of disability or presumed disability. The President referred also to section 53, which embodies a principle of vicarious liability.
72 Although the initial referral of Dr O’Sullivan to a psychiatric examination was, it seems, made under section 54 of the MP Act, the power ultimately relied on was that conferred by section 78A. The circumstances of this change in the source of power that the Medical Board claimed to be applicable are not entirely clear to me. But for reasons that will become apparent, this is not a significant question.
73 Mr Lynch argued that when due account was taken of a number of relevant provisions of the MP Act, it became clear that Dr O’Sullivan’s claim of unlawful discrimination under the AD Act was entirely misconceived.
74 It is sufficient for present purposes to cite what I would regard as the relevant provisions (for present purposes) of the AD Act to which the President’s Summary referred, together with the most important of the provisions of the MP Act on which Mr Lynch relied.
75 The relevant parts of sections 49A, 49B, 49M and 54 of the AD Act are as follows:-
A reference in this Part to a person’s disability is a reference to a disability:49A Disability includes past, future and presumed disability
(a) that a person has, or(b) that a person is thought to have (whether or not the person in fact has the disability), or
(d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).(c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or
49B What constitutes discrimination on the ground of disability
(1) A person ( the perpetrator ) discriminates against another person ( the aggrieved person ) on the ground of disability if, on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability…
(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability:49M Provision of goods and services
(b) in the terms on which he or she provides the person with those goods or services.
(a) by refusing to provide the person with those goods or services, or
(2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person’s disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.
(1) Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of:54 Acts done under statutory authority
(a) any other Act, whether passed before or after this Act…
76 The relevant parts of sections 2A, 54, 66, 72 and 78A of the MP Act are as follows:-
2A Object and principle of administration of Act
(2) The object of this Act is achieved by providing mechanisms designed to ensure that:(1) The object of this Act is to protect the health and safety of the public.
(a) medical practitioners are fit to practise medicine…
(3) In the exercise of functions under this Act the protection of the health and safety of the public is to be the paramount consideration.
(1) The Board may by notice given to a registered medical practitioner against whom a complaint has been made direct the practitioner to undergo an examination by a specified registered medical practitioner or a specified registered health practitioner at a specified time and place.54 Board may require practitioner to undergo examination
(3) The examination is to be at the expense of the Board.(2) A practitioner must not be directed to undergo an examination under subsection (1) unless it is reasonable to require the examination, given the nature of the complaint against the practitioner. The time and place specified for the examination must be reasonable.
(1) The Board must, if at any time it is satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied that the action is otherwise in the public interest:66 Suspension or conditions to protect the public
(b) impose on a registered medical practitioner’s registration such conditions relating to the practitioner’s practising medicine as the Board considers appropriate….
(a) by order, suspend a registered medical practitioner from practising medicine for such period (not exceeding 8 weeks) as is specified in the order, or
(3) The Board may take action under this section:
(b) whether or not proceedings in respect of such a complaint are before a Committee or the Tribunal.
(a) whether or not a complaint has been made or referred to the Board about the practitioner, and
(1) The Board may refer any matter to an Impaired Registrants Panel if the Board considers that the matter indicates that a registered medical practitioner or medical student suffers from an impairment. This is not limited to matters that are the subject of a complaint to the Board….72 Referral of impairment matters concerning practitioners or students
78A Board may require practitioner to undergo examination
(2) A practitioner must not be directed to undergo an examination under subsection (1) unless it is reasonable to require the examination, given the nature of the matter that is the subject of the referral or proposed referral. The time and place specified for the examination must be reasonable and the examination is to be at the expense of the Board….(1) The Board may by notice given to a registered medical practitioner who is the subject of a matter referred or proposed to be referred to an Impaired Registrants Panel direct the practitioner to undergo an examination by a specified registered medical practitioner or a specified registered health practitioner at a specified time and place.
77 Dr O’Sullivan’s claim of unlawful discrimination depends on his being able to show that the decision to require him to undergo a psychiatric examination was made ‘on the ground of’ what the Conduct Committee believed at the relevant time to be a ‘disability’ affecting him. For reasons explained above at [57 – 60], this involves proving that his perceived disability was at least one of the ‘real’, ‘genuine’ or ‘true’ reasons for the decision. This is of course a wholly different characterisation of the motivation that he ascribed to the Committee and the relevant staff of the Medical Board in his claim of victimisation.
78 The core of Mr Lynch’s argument regarding Dr O’Sullivan’s claim of unlawful discrimination was explained in the following terms at paragraphs 20 and 21 of his written submissions, which were handed up at the hearing:-
20 It is inconceivable that the Parliament intended to empower the Medical Board to protect the community against impaired or disabled medical practitioners on the one hand and at the same time expose it to liability for discriminating on the ground of disability in respect to the same exercise of power. One of the purposes of the MPA is to discriminate, albeit lawfully, against practitioners who have or are suspected of having a disability where patients may be exposed to jeopardy, in order to ensure that any such disability is addressed by various means so that patients’ well-being is safeguarded. To “render unlawful” such regulation by the Board would plainly, in the terms of s. 49M(2) of the AD Act “impose unjustifiable hardship” on the Board and would preclude it from taking necessary steps to safeguard the community.
21 One of those protective measures is to establish by independent clinical assessment whether or not a practitioner does suffer from an impairment and to appropriately deal with it, if the evidence confirms the presence of impairment. Examinations under s. 78A of the MPA, on their proper construction, are necessary to enable the Board to determine if there is independent evidence to confirm impairment and following consideration under s. 66 to… either deal with an impairment matter as a complaint or to refer the matter to an [Impairment Registration Panel]. The clinical examination under s. 78A is necessarily incidental to that statutory requirement which is both mandatory and specific.
79 In oral submissions, Mr Lynch used the phrase ‘statutory requirement which is both mandatory and specific’ when arguing that the decision to refer Dr O’Sullivan for a psychiatric examination was a ‘necessary’ step taken by the Medical Board ‘in order to comply with a requirement of’ the MP Act and therefore fell within section 54 of the AD Act. He pointed out that in the High Court decision in Waters v Public Transport Corporation (1991) 173 CLR 349, McHugh J, in the course of discussing (at 413) a provision in similar terms in Victorian anti-discrimination legislation, used the same phrase to identify the type of statutory requirement to which this provision was directed. It followed, Mr Lynch argued, that section 49M(2) and section 54 provided independent and effective grounds of defence to the Medical Board against any claim that they had discriminated unlawfully against Dr O’Sullivan.
80 As mentioned above at [45], Mr Eaves’ submissions did not deal at any length with Dr O’Sullivan’s claim of unlawful discrimination.
81 In my judgment, Mr Lynch’s submissions on this matter are persuasive, notably when the full implications of the above-quoted sections of the MP Act are taken into account. I do not need to add anything to them. It follows that Dr O’Sullivan’s claim of unlawful discrimination must be characterised as ‘misconceived’ within the meaning of section 92(1)(a)(i) of the AD Act.
Conclusion
82 For the foregoing reasons, the Medical Board’s application for the dismissal of Dr O’Sullivan’s complaint under section 102 of the AD Act is upheld.
83 Mr Lynch indicated in his written submissions that in such event the Board would seek to be heard on costs. Under section 88 of the ADT Act, the primary rule is that the parties to proceedings such as these should bear their own costs. The Tribunal, however, may award costs is it is ‘fair’ to do so.
84 I direct as follows. There will be no order for costs in these proceedings unless a party files and serves an application for costs, with supporting submissions, within 28 days. In such event, the opposing party or parties must file and serve submissions in response within a further 28 days. The question of costs will then be determined ‘on the papers’, pursuant to section 76 of the ADT Act.
31/03/2010 - typographical error, words deleted - Paragraph(s) 33(d)
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