Prakash v Health Care Complaints Commission - [2006] NSWCA 153

No judgment structure available for this case.

New South Wales

Court of Appeal

CITATION: PRAKASH v HEALTH CARE COMPLAINTS COMMISSION [2006] NSWCA 153
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 26 April 2006

JUDGMENT DATE:
16 June 2006

JUDGMENT OF: Santow JA at 1; Tobias JA at 79; Basten JA at 80

DECISION: Appeal dismissed with costs.

CATCHWORDS: MEDICINE – Medical Practitioners – Challenge to order made pursuant to s64(1) of the Medical Practice Act 1992 (“the Act”) for removal of appellant’s name from Register of Medical Practitioners – “unsatisfactory professional conduct” and “professional misconduct” within s37 conceded – dishonesty - not keeping a drug register – alleged disregard for or non-compliance with conditions on re-registration – observations on extent of appeal right under s90(1) of the Act and in particular as to whether in circumstances appellant could controvert findings of Tribunal on basis that they went to what was the appropriate order rather than the conceded professional misconduct.

LEGISLATION CITED: Medical Practice Act 1992 s36; s37; s64(1); s90(1)(b)
Medical Practitioners Act 1938 (NSW) s 32U

CASES CITED: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Bannister v Walton (1993) 30 NSWLR 699
Fox v Percy (2003) 214 CLR 118
Gayed v Walton (unrep, NSW Court of Appeal, 31 July 1997)
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
House v the King (1936) 55 CLR 499
Lindsay v Health Care Complaints Commission [2005] NSWCA 356
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
Re Dr Than Le (Medical Tribunal decision, 20 September 2001)
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441
R v Connell; Ex parte Hetton Bellbird Collieries Ltd (No. 2) (1944) 69 CLR 407
Sabag v Health Care Complaints Commission [2001] NSWCA 411
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
Warren v Coombes (1979) 142 CLR 531

PARTIES: Karanalu Vinatheya PRAKASH (Appellant)
HEALTH CARE COMPLAINTS COMMISSION (Respondent)

FILE NUMBER(S): CA 40080/05

COUNSEL: S W GIBB, SC/ E H PIKE (Appellant)
M G LYNCH (Respondent)

SOLICITORS: Brock Partners (Appellant)
Health Care Complaints Commission (Respondent)

LOWER COURT JURISDICTION: The Medical Tribunal of New South Wales

LOWER COURT FILE NUMBER(S): NSWMT 40004/04

LOWER COURT JUDICIAL OFFICER: Judge A M Ainslie-Wallace, (Members: Dr M Pasfield, Dr E Kok, Ms A Deveson)

LOWER COURT DATE OF DECISION: 17 December 2004

CA 40080/05
NSWMT 40004/04

SANTOW JA
TOBIAS JA
BASTEN JA
16 JUNE 2006

Karanalu Vinatheya PRAKASH v HEALTH CARE COMPLAINTS COMMISSION

Judgment

1 SANTOW JA:

INTRODUCTION

Medical Practice Act

2 That removal was on the basis, not itself now challenged, that two particulars of complaint, being the most significant, were made out, being numbers 1 and 6 against the appellant. They related to events in 1999 and were as follows (Blue 1, 4-5):

6. That the practitioner made a false statement to the Health Insurance Commission when completing the application for a provider number on 9 March 1999.

3 It is convenient to refer to these as complaints 1 and 6, though technically they are particulars of the overall complaint (set out at Blue, 4), as follows:

“ Dr Karanalu Vinatheya Prakash of 21/9 Bayview Avenue, The Entrance NSW 2261 (“the practitioner”) being a medical practitioner registered under the Act, has been guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of s36 and s37 of the Act in that the practitioner has:

a) engaged in conduct which demonstrates a lack of adequate knowledge, skill, judgment or care in the practice of medicine; and/or

b) engaged in improper or unethical conduct; and/or

4 There are also lesser items, numbered 2, 3, 4 and 5, all relating to issuing prescriptions carrying the addresses of various medical centres at which the appellant was not then practising; it was not disputed that they amounted to “unsatisfactory professional conduct” within s36 of the Act, but not “professional misconduct” within s37; see [7] below.

5 The appellant, pursuant to a Further Amended Notice of Appeal, challenges the order that his name be removed on a number of grounds. These were refined in oral argument. The appellant accepted that the Tribunal’s adverse credibility findings against him could not be challenged. But it was submitted that insofar as any factual findings were made that solely depended upon those credibility findings, these could only be challenged if they were contrary to other incontrovertible evidence, invoking the principles in Fox v Percy (2003) 214 CLR 118.

6 It was also submitted that important factual issues, which were not strictly relevant to the complaint but which bore on the orders made, could be considered afresh though in that latter context only. The appellant cited in support Clarke JA in Bannister v Walton (1993) 30 NSWLR 699 at 734-5, approved by Davies AJA in Sabag v Health Care Complaints Commission [2001] NSWCA 411. As I explain, even allowing that proposition to be correct, I do not consider any such further consideration warrants disturbance to the orders made.

7 In relation to the two principal complaints found against the appellant, it was not disputed that they constituted “unsatisfactory professional conduct” within s36 of the Act and “professional misconduct” within s37 of the Act. Those sections provide as follows:

“Section 36

For the purposes of this Act, “unsatisfactory professional conduct” of a registered medical practitioner includes each of the following:

a) Any conduct that demonstrates a lack of adequate knowledge, skill, judgment or care, by the practitioner in the practice of medicine.
b) Any contravention by the practitioner (whether by act or omission) of a provision of this Act or the regulation
c) Any contravention by the practitioner (whether by act or omission) of a condition to which his or her registration is subject …

Section 37

8 The order that the appellant’s name be removed from the Register was said to be, in terms of House v the King (1936) 55 CLR 499 at 504-5, a result that, upon the facts, was unreasonable or plainly unjust, such that the appellate court may infer that in some way “there has been a failure properly to exercise the discretion which the law reposes” in the Tribunal.

9 The appellant submitted that in imposing the order that his name be removed from the Register rather than a lesser sanction, the Tribunal’s discretion thereby miscarried. In particular the appellant submitted that the Tribunal failed to take into account a number of material considerations:

(b) the Tribunal failed to take into account the fact that the New South Wales Medical Board (“the Board”) had already suspended the appellant, as a result of the complaint made by Patient A (the patient who was treated between 5 December 1999 and 10 January 2000 when the appellant was not supervised) doing so for some three years from 15 November 2000 to 26 September 2003 when the suspension was lifted subject to a set of conditions;

(c) the Tribunal failed to take into account that on 13 January 2004 the Board, at the request of the appellant, modified two of the conditions under which his suspension had been lifted;

(d) the Tribunal failed to take into account that there was no evidence that the appellant had in any way breached those conditions during the 14 months between 26 September 2003 and 11 November 2004 when subject to them. Despite that period of compliance with the Board’s conditions the Tribunal concluded that the appellant “was quite prepared to disregard the conditions on his right to practice when it did not suit his convenience” (Judgment Red, 15S at [32]) and observed that “it was only a very short time after [the appellant] resumed practice as a doctor in NSW that the first of these complaints arose”; and

(e) the Tribunal did not sufficiently take into account that these were “old” complaints dating back to 1999 but agitated only in 2004 before the Tribunal, in circumstances where the original complaint had been made by Patient A as long ago as November 2000.

10 The appellant argued that there was no reported case of de-registration where the prescribing of a drug was for so short a time (five weeks including Christmas), justified by the circumstances and innocuous. So far as Complaint 6 was concerned, the appellant acknowledged that while it could not be submitted that the act of providing a false statement to the Health Insurance Commission, even if not motivated by gain, was anything but a serious offence involving dishonesty. However, it was an instance isolated by over twenty years of practice both in New South Wales and elsewhere.

11 I deal below with the salient facts, which are not challenged.

SALIENT FACTS

12 The respondent, Health Care Complaints Commission (“HCCC”), brought an application to have the name of the appellant, Dr Prakash, removed from the Register of Medical Practitioners on the basis that the appellant was guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of ss36 and 37 Medical Practice Act 1992. The relevant complaints are as earlier described.

13 The appellant did not contest the facts that made up the particulars of complaints 1 and 6; see [33] and [34] below. Nor did he contest that each was capable of amounting to “unsatisfactory professional conduct” within s36 of the Act.

14 There was no issue that the actions making up complaints 2,3,4 and 5 (which all related to issuing prescriptions carrying the addresses of various Medical Centres at which the appellant was not then practising) amounted to “unsatisfactory professional conduct” within s36 of the Act. The respondent did not submit that these complaints, in terms of their “sufficiently serious nature”, amounted to “professional misconduct” within s37 so as of themselves to justify suspension or removal.

15 The issue before the Medical Tribunal was whether complaints 1 and 6 of the complaint as particularised amounted to professional misconduct.

16 The appellant migrated to Australia from India in 1972 and was registered as a medical practitioner in New South Wales in that year.

17 Thereafter he practised in New South Wales until 1980.

18 In December 1978, the appellant was convicted of thirty-nine offences of falsely claiming money under the Health Insurance Act 1973 and one offence under the Poisons Act (NSW) 1966 of not keeping a drug register. He received various penalties including fines, orders to make financial reparations and imprisonment “to the rising of the court”.

19 On 17 December 1979, the convictions were considered by the Medical Disciplinary Tribunal which determined that the appellant was unfit to practise medicine and ordered that his name be removed from the Register of Medical Practitioners. His appeal to the Court of Appeal was dismissed in October 1980.

20 The appellant thereafter ceased practice in New South Wales.

21 Between 1981 and 1994, the appellant practised medicine in South Australia, save for a two-year period spent in practice in India from 1986 to 1988.

22 In 1984, the South Australian Medical Practitioners Conduct Tribunal found the appellant guilty of professional misconduct in relation to the New South Wales convictions but imposed no penalty.

23 In March 1990 and July 1992, the appellant made applications for re-registration on the New South Wales Register, both of which were rejected by the Medical Tribunal.

24 In March 1994, a complaint came before the South Australian Medical Tribunal that the appellant was guilty of unethical conduct. However, on the appellant’s undertaking not to practise in South Australia, the complaint was adjourned and has not been determined.

25 From 1994 to May 1997, the appellant practised medicine in Saudi Arabia and India.

26 On 30 May 1997, the appellant made a further application to be re-registered in New South Wales which was successful but subject to the following conditions:

(b) that each six months during the period of supervision, the supervising doctor provide to the Board a report setting out an assessment as to Dr Prakash’s ability to practise medicine;

(c) that, following the satisfactory completion of the period of supervision, Dr Prakash for a period of three years provided the Board with details of his place of practice.

27 In compliance with the conditions imposed, the appellant entered into practice under the supervision of various practitioners approved by the Board.

28 In February 1999, following an interview with the appellant in March 1998, the Board extended the period of supervision. The appellant’s application to have the supervision requirement lifted was refused.

29 On 21 September 1999, the Board again extended the period of supervision.

30 On 15 November 2000, as a result of a complaint made by Patient A earlier in November 2000, the Board suspended the appellant, for a period of close to three years. The Board lifted the suspension on 26 September 2003, subject to a set of conditions.

31 On 1 December 2003 a complaint was lodged by the respondent with the Medical Tribunal which prompted the Tribunal proceedings.

32 As at the date of commencement of the Tribunal hearing (10 November 2004), the appellant continued to be supervised in practice. Since September 2004, Dr Majahan of the Bella Vista Medical Centre in Baulkham Hills has supervised him.

33 In relation to Complaint 1, the undisputed evidence is as follows:

(b) Patient A had been a patient of the Balmoral Street Medical Centre since 1995. Patient A suffered from chronic back pain and had from time to time been prescribed Endone, an opiate, by various doctors at the Medical Centre.

(c) For some time before 3 December 1999, Patient A had been treated by the appellant, during the appellant’s period of practice at the Balmoral Street practice. As part of the treatment, the appellant had obtained an authority to prescribe Endone for him.

(d) From 5 December 1999 until 10 January 2000, after he had left the Balmoral Street practice, the appellant continued to treat Patient A and to prescribe Endone and other drugs for him.

(e) The appellant did not dispute that he continued to treat Patient A in breach of the condition of his registration. He gave evidence that:

(ii) he was concerned that, over the Christmas period, Patient A would be without pain relief,

(iii) he believed his actions were morally correct,

(iv) he was greatly remorseful, and

(v) he had found himself acceding to Patient A’s very persuasive arguments that he continue to treat him.

34 In relation to Complaint 6, the undisputed evidence is as follows:

(b) The appellant had completed application forms of this type many times before. Once a Provider Number is allocated, it allows the practitioner to receive money from Medicare for patient services.

(c) Question 4 provided:

“Has your registration or license to practise as a medical practitioner been restricted or limited in ANY Australian state or territory? If yes, attach details.

(d) The appellant answered “no” to each of these questions.

Relevant Legislation

35 I quote the other relevant sections of the Act below:

“Section 90

(a) a decision of the Tribunal with respect to a point of law, or

(2) An appeal under this section must be made within 28 days (or such longer period as the Court may allow in a particular case) after the handing down of the decision or the exercise of power against which the appeal is made.

(3) The Supreme Court may stay any order made by the Tribunal, on such terms as the Court sees fit, until such time as the Court determines the appeal.

Section 91

(a) dismiss the appeal, or

The Primary Judgment

Findings of Credit

36 There was much in the appellant’s evidence that troubled the Tribunal. His apology appeared glib and rehearsed as did his assurances that he understood the seriousness of the complaint. Often he deflected questions by repeating his apologies (Red, 10O-Q).

37 The Tribunal was concerned by the apparent inconsistencies in his evidence, for example, in relation to this treatment of Patient A. Most troubling was his evidence in relation to Complaint 6, the false statement given to the Health Insurance Commission (“HIC”) (Red, 10R-11N).

38 This evidence together with the Tribunal Members’ observation of the respondent’s demeanour during his evidence in the witness box caused the Tribunal to have doubts that the appellant was giving honest and accurate evidence (Red, 11O-Q).

39 The Tribunal therefore decided that it could not accept the appellant as a credible witness and had no confidence in the assurances and apologies offered for his actions (Red, 11Q-S)].

Findings of Fact

40 In relation to both Complaint 1 and 6, the Tribunal was of the opinion that the conduct was sufficiently serious to be professional misconduct (Red, 15J-K).

41 As to Complaint 1, the Tribunal was unpersuaded that there was no other reasonable course open to the appellant but to continue to treat Patient A in breach of his conditions and concluded that the appellant was quite prepared to disregard the conditions on his right to practise when it did not suit his convenience (Red, 15P-S).

42 In coming to this conclusion, the Tribunal was conscious of:

(b) that he had been de-registered,

(c) that he had made several unsuccessful attempts to be restored to the register before finally succeeding in 1997 after almost 20 years of being de-registered in New South Wales (Red, 15T-W).

43 It was only a very short time after the appellant resumed practice as a doctor in New South Wales that the first of these complaints arose (Red, 15X).

44 The conduct in breach of the condition was deliberate and repeated over a period of five weeks (Red, 16C).

45 The Tribunal adopted the statement made by a Medical Tribunal in Re Dr Than Le (Medical Tribunal decision, 20 September 2001 at 46, para 95):

“Particularly when imposed in a disciplinary context, such restrictions are not lightly imposed nor may they be treated lightly. Any practitioner whose registration is subject to conditions could not reasonably hold any view of those conditions other than that they must be scrupulously observed. Repeated wilful breaches of conditions are treated by the Medical Tribunal as a most serious finding against a practitioner, ‘containing as it does a grave criticism of the standard of the practitioner’s conduct’.” (Red, 16C-H).

46 As to Complaint 6, the Tribunal found the appellant’s reasons for answering “no” to Question 4 far from compelling or convincing (Red, 14M-N, 11C-N). Examples of reasons given were:

any state

(b) That he was concerned to get a provider number as soon as possible so he could practise.

47 The appellant would not concede in cross-examination that he had lied on the form but said that he had been wrong to give that answer and that it was a mistake (Red, 14P-Q).

48 Complaint 6 was a very serious matter indeed in the view of the Tribunal (Red, 16J).

49 In reaching the conclusion that this conduct constituted professional misconduct within the meaning of s37, the Tribunal was of the view that the appellant was under a duty to deal honestly with the HIC as part of his practice as a doctor and this duty is part of the standard of conduct expected of a medical practitioner (Red, 16K-M).

Appropriate Order

50 The Tribunal reviewed the monthly reports sent to the Board by the supervising doctors (Red, 16W-17Q).

51 Notwithstanding the evidence of Dr Tsung (to the effect that, while supervising the appellant between March and June 2004, she had felt constrained about what she wrote in her reports), the Tribunal was prepared to accept the overall good reports from other supervisors and the submission of the appellant’s counsel that “on most accounts he is a good practitioner” (Red, 17S-U).

52 The Tribunal also accepted that the complaints were old, arising from conduct which took place in 1999, with the complaint not being made until April 2003; I interpolate, that date appears incorrect. However, the fact that the complaints are old does not diminish their seriousness (Red, 17V-Y).

53 Contrary to the submission of the appellant’s counsel, the Tribunal was unconvinced that the appellant had learnt any lesson at all despite his frequent concessions that what he did was wrong and amounted to a misjudgment (Red, 18C-E).

54 The Tribunal found that, having finally secured re-registration the appellant acted in complete disregard for the conditions on his registration in relation to Complaint 1 (Red, 18E-G).

55 The false statement to the HIC may not have been committed for “greed” but it shows a want of honesty and proper regard for the obligation of doctors who participate in the Medicare scheme (Red, 18H-J).

56 As to whether the appellant should be permitted to practise conditionally (as submitted by the appellant’s counsel), the Tribunal was of the view that his conduct in relation to Patient A in both treating and prescribing for him left it with no confidence that he would comply with any further conditions placed on his right to practise (Red, 18K-M).

57 The Tribunal acknowledged that it is a grave step to deprive a person of his living. However, in this case there was no course which was appropriate having regard to the seriousness of Complaints 1 and 6 but to order that the appellant’s name be removed from the Register of Medical Practitioners and to direct that he may not apply for re-registration until the expiration of a period of two years (Red, 18M-P).

58 In relation to Complaints 2-5, not relevant to this appeal, the Tribunal ordered that the appellant receive a caution (Red, 18P-Q).

DISPOSITION

59 Mr Gibb SC, in an exceptionally able argument, started with the following proposition, itself not in dispute. It was that notwithstanding a finding of both “unsatisfactory professional conduct” within s36 and “professional misconduct” within s37 “of a sufficiently serious nature to justify suspension of the practitioner …”, s64(1) recognises that the Tribunal retains a discretion as to whether or not to make an order suspending such a person from practising medicine or de-registering that person.

60 The appellant then sought to attack the Tribunal’s exercise of discretion on the basis that the order was unreasonable or plainly unjust so as to allow the appellate court to infer that in some way “there has been a failure properly to exercise the discretion which the law reposes” in the Tribunal. This was sought to be demonstrated by the Tribunal’s failure to take into account what were said to be material considerations set out under [9] above.

61 The appellant further relies upon the absence of any reported case of de-registration where the prescribing of a drug was for so short a time, justified by the circumstances and innocuous.

62 To deal with the last submission first, an obvious distinguishing feature of the present case was that not only was there a complaint (Complaint 6) constituting a serious offence involving dishonesty, but there were also the events preceding the first Complaint, in particular that the appellant in 1979 had been ordered to have his name removed from the Register of Medical Practitioners. This moreover followed his conviction for a number of offences involving dishonesty, in falsely claiming money under the Health Insurance Act 1973. There was also an offence under the Poisons Act (NSW) 1966 of not keeping a drug register.

63 It is thus not surprising that there was no strictly comparable case. But it would be misleading to treat Complaint 1 as comprising simply one isolated incident. In relation to Complaint 1 there were repeated unsupervised prescriptions issued, though these were in relation to the one patient and over a period of five weeks. Important too were the adverse findings on credibility, going to the appellant’s basic honesty, based on the adverse view the Tribunal formed of evidence given by the appellant to the Tribunal.

64 Those matters of serious concern bear upon whether, even if the Tribunal failed to take into account relevant considerations such as would require a re-exercise of its discretion by this Court, this Court should make any order different from removal of the appellant’s name from the Register. It must be borne in mind that not only is the nature of the jurisdiction exercised by the Tribunal entirely protective rather than punitive (Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637-8), but s91(1)(b) also makes explicit that in making any order, this Court does so “as it thinks proper having regard to the merits of the case and the public welfare”.

65 Turning to the matters that, in the appellant’s submission, the Tribunal failed to take into account identified in [9] above, the first is that the Tribunal made no reference to the appellant’s proper and compliant conduct, apart from the matters of specific complaint, beyond 21 September 1999. However, it is difficult to see how that very general consideration could be material of itself, as distinct from the more specific matters dealt with below.

66 The second matter disregarded was that the Board had already suspended the appellant from 15 November 2000 to 26 September 2003 pursuant to ss66 and 67 of the Act. Thereafter the suspension was lifted, subject to a rigorous set of conditions. This suspension was for a period of close to three years. However, the relevance of this matter is limited at best, given that the matters the Tribunal dealt with, namely Complaints 1 and 6, were distinct from the matters that led to the Board suspending the appellant in the first place, and which seem to relate to his refusal to further prescribe to Patient A; see Blue, 345R and the appellant’s submissions Orange, 6 at para 9. This was however against an earlier background of offences of dishonesty in December 1978 and the appellant continuing to practice in South Australia and overseas, then returning to New South Wales where the original convictions and removal of the appellant’s name from the register had occurred.

67 The appellant’s stronger argument concerns the fact that, when the Tribunal handed down its decision on 17 December 2004, it failed to take into account the absence of any evidence that, while the appellant was subject to the Board’s conditions between 26 September 2003 and 11 November 2004, the appellant had in any way breached those conditions. Yet notwithstanding this, the Tribunal concluded that the appellant “was quite prepared to disregard the conditions on his right to practice when it did not suit his convenience”. It added the not strictly accurate observation that “it was only a very short time after [the appellant] resumed practice as a doctor in New South Wales that the first of these complaints arose”. [emphasis added]

68 There was also the further statement at [42] in the Tribunal’s reasons that “the Tribunal finds that having finally secured that which he wished, that is, re-registration [the appellant] acted in complete disregard for the conditions on his registration in regard to complaint one”.

69 The latter statement ignores the fourteen-month period during which the appellant had indeed secured re-registration and did not act in disregard for the conditions on his registration.

70 I do not however find any materiality in the Tribunal failing to take into account that on 13 January 2004 the Board modified two of the conditions under which the appellant’s suspension had been lifted at his request. Nor do I find material that these were comparatively “old” complaints dating back to 1999 but agitated only in 2004. The Tribunal did take that matter into account (see [41] at Red, 17) but concluded that “the fact that the complaints are old does not diminish their seriousness”.

71 Thus, putting aside those lesser matters, the Tribunal should have taken into account the period of fourteen months during which the appellant did comply with the Board’s conditions. But ranged against that, is the Tribunal’s strongly adverse finding as to the appellant’s honesty, a matter of important weight to my mind. Thus at [19] the Tribunal concludes, “In the result, the Tribunal has decided that it cannot accept the respondent as a credible witness and has no confidence in the assurances and apologies for his actions offered to the Tribunal for his actions” [emphasis added].

72 Moreover, Complaint 6 itself reflected dishonesty. While it was perhaps of a lesser order than Complaint 1, in that the obtaining of a provider number was clearly a necessary pre-requisite for his ability to practise, it also reflected a desire to get one without making proper disclosure of his past misconduct and the consequences in terms of registration or licence. The appellant rightly conceded that this was a serious offence. One could not say that the offence was not motivated by gain, to the extent that early obtaining of the provider number was necessary for his capacity to earn income. At the least, it reflected a cavalier attitude to providing information properly sought by the HIC.

73 As to the circumstances of Complaint 1, while it is true that it concerned only one patient (Patient A) who, as the Tribunal recognised, had by entreaty sought continuation of the medication for pain relief that he had earlier received when treated by the appellant during his supervision, the Tribunal was rightly unpersuaded that there was no other reasonable course open to the appellant but to continue to treat Patient A with medication in breach of his conditions. At the least, the decision to continue treating Patient A demonstrated that the appellant lacked the judgment and strength of character to send the patient elsewhere, though he was clearly not motivated by gain as it appears he did not charge Patient A any fee.

74 When conditions are imposed, as they were here, for restoration to practise, those conditions must be scrupulously observed, as observed in Re Dr Than Le (supra). It is even more serious when dishonesty supervenes, reflected here in the appellant’s statement (at Blue, 350P-R) “So, I relented and wrote him the prescriptions, knowing full well that I shouldn’t be doing it and frankly, hoping that no one would ever notice”.

75 Nor do I consider there is any merit in the argument that the Tribunal should somehow have reviewed the circumstances in which the Board originally imposed the conditions it did. It knew enough; that these conditions resulted from the series of events beginning with the appellant’s 39 offences falsely claiming money under the Health Insurance Act and failing to keep a drug register, with his subsequent continuation of practice outside of New South Wales.

76 However, there is a further aspect to the Tribunal’s failure to take into account the period during which the appellant was subject to the Board’s conditions between 26 September 2003 and 11 November 2004 and the fact that the appellant did not appear to have breached those conditions. It is that the point does not appear to have been squarely taken at trial, though passing reference was made (Black, 109G-H, 111(I), 113C-D). To raise the matter in final submissions to the Tribunal clearly left it too late for the respondent to advance any evidence to the contrary.

77 But, in any event, I consider that the combination of Complaints 1 and 6, coupled with the Tribunal’s conclusion as to the appellant’s dishonesty, leads me to the conclusion that in re-exercising the Tribunal’s discretion, the same orders should be made as were made by the Tribunal.

OVERALL CONCLUSION AND ORDERS

78 In my judgment, this appeal should fail. I would propose orders as follows:

(2) Appellant to pay respondent’s costs.

79 TOBIAS JA: I agree with Santow JA.

80 BASTEN JA: The background to this appeal, and the relevant statutory provisions, are set out in the judgment of Santow JA, and need not be repeated. I agree with the orders proposed by his Honour.

Scope of appeal

81 This appeal raises for consideration the bifurcated rights conferred on the parties before the Medical Tribunal by s 90(1) of the Medical Practice Act 1992 (NSW) set out at [35] above. That provision allows separately for an appeal against “a decision of the Tribunal with respect to a point of law” and against “the exercise” of a disciplinary power conferred on the Tribunal by Part 4, Division 4 of the Act, being a power which may be exercised where a complaint has been proved or admitted: ss 60-64.

82 The first limb of the appeal provision requires the identification of a decision of the Tribunal “with respect to a point of law”. The scope of the first limb is not directly in issue in the present case. It adopts a common form of statutory language which is generally accepted as permitting an appeal where an error of law can be identified in the procedure adopted by the Tribunal, or in its reasoning, which is material to the final and operative decision, being either a decision that the complaint is proved or not, or as to the disciplinary order made. See generally, in this respect, the discussion in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [148]-[168].

83 On the other hand, a challenge to the making of a disciplinary order is not so limited, and was described by Mason P in Gayed v Walton (unrep, NSW Court of Appeal, 31 July 1997), as a “general” appeal, a term used with respect to the equivalent provision in the earlier legislation, namely s 32U of the Medical Practitioners Act 1938 (NSW) (“the 1938 Act”) by Mahoney JA in Bannister v Walton (1993) 30 NSWLR 699 at 732D.

84 In Bannister, by way of distinction between the two limbs of the old s 32U, Priestley JA noted that the second limb did not “extend to questioning the acceptance by the Tribunal of the facts comprising proof of the complaint” (30 NSWLR at 734C) and Clarke JA noted that, under the second limb, the Court acts on “the basis that the factual findings underlying the ‘decision’ of the Tribunal are not open to scrutiny”: at 735A-B. His Honour continued, by way of explanation (at 735A-B):

“It may be, however, that the tribunal may reach conclusions on a number of factual issues which while not strictly relevant to the complaint may be considered to be of importance in determining what is the appropriate order to be made pursuant to s 32R. In cases where this occurs it would seem to me that this Court would be entitled to examine those conclusions in exercising its power to review the order under s 32U(1)(b).”

85 These comments, which were not central to the determination of Bannister, have been referred to in subsequent cases without significant elaboration and on the assumption that they apply equally to the Medical Practice Act: see Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [6] and Lindsay v Health Care Complaints Commission [2005] NSWCA 356 at [41] and [42] (Hunt AJA, Mason P and Hodgson JA agreeing). However both cases recognised that the exercise of power constituted by the making of a disciplinary order was discretionary in nature and that an appellant must identify an error of the kind specified in House v The King (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ). In the particular passage often quoted from House, the joint judgment stated:

“It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.”

86 Given the approach adopted in the relevant authorities as to the scope of an appeal against a decision with respect to a point of law, what is said to be protected against even a “perverse” result, are the findings of primary facts, so long as there is some evidence to support the finding. Although, in his much-cited three stage analysis in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156, Glass JA linked, as the first stage, “determining the facts by way of primary findings and inferences”, it may be necessary to separate the drawing of inferences from findings as to the primary facts, at least where the inferences involve the third stage identified, namely the application of the law to the facts found. An inference of the relevant kind in the present case would be a finding that particular conduct was sufficiently serious to justify a suspension or deregistration, and was therefore professional misconduct. On one view, such a finding would involve an evaluative judgment of the kind which may more readily be reviewed than primary facts, on an appeal by way of rehearing: see Warren v Coombes (1979) 142 CLR 531 at 551-552 (Gibbs ACJ, Jacobs and Murphy JJ). It is also arguably similar to the kind of opinion, described as capable of being set aside pursuant to judicial review if “arbitrary, capricious, irrational, or not bona fide” in R v Connell; Ex parte Hetton Bellbird Collieries Ltd (No. 2) (1944) 69 CLR 407, by Latham CJ at 432. An opinion so formed would not be an opinion of the kind required by the statute as a basis for an order suspending or deregistering a medical practitioner.

87 Proceedings brought in the supervisory jurisdiction of the Court, for orders conventionally described as prerogative relief, may broadly be described as requiring the demonstration of ‘legal error’. But that is not a phrase having a precise and inflexible meaning: rather it may adapt to its context: see generally, Aronson, Dyer & Groves, Judicial Review of Administrative Action (3rd ed, 2004) pp 179-187. It would be unfortunate if there were any significant distinction to be drawn between the kinds of error which would warrant quashing a decision under s 69 of the Supreme Court Act and those justifying setting a decision aside in exercise of the statutory appeal jurisdiction conferred by s 90(1)(a) of the Medical Practice Act, there being no privative clause limiting the forms of relief available.

88 There are also similarities between the factors referred to in House v The King and the well-known grounds of judicial review of administrative action. However, the terminology used may also mask some differences. Thus, in judicial review proceedings, “extraneous or irrelevant matters” are defined as matters which may not be taken into account and material considerations are those which must be taken into account: see Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 39 (Mason J). A broader approach may be appropriate in considering an appeal against a discretionary judgment. Thus, a material consideration may involve any matter having potential relevance to the exercise being undertaken and may not be limited to legally mandatory considerations. In this sense, what is relevant will depend upon the particular circumstances of the case, as well as the scope and nature of the statutory power. However, the obligation of the Tribunal to consider such matters will not usually extend beyond those presented to it by the party seeking to resist the exercise of a particular power in circumstances where it had been engaged: c.f. Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 at [29]-[32] and [39]-[40]. There are, for example, serious doubts as to whether counsel for the Appellant, appearing before the Tribunal, expressly relied upon compliance with the licence conditions during the period when the complaint was pending.

89 It may be accepted then that the power of review of an order, pursuant to par (b) of s 90(1), even constrained by the principles in House v The King, is likely to permit a wider scope for review than that contained in par (a). Thus, at least in relation to findings of professional misconduct, where the complaint is found proved and not challenged, or the challenge is unsuccessful, the proper inference from the statutory scheme is that the challenge to the order of the Tribunal, so far as it does not identify an error of law, must identify an error of principle, but one which does not form a basis of the finding that the complaint has been proved. In the case of a finding of professional misconduct, this may be a serious constraint, because almost any circumstance affecting the severity of the misconduct, will be relevant to the finding that it was indeed “professional misconduct”. Thus an appellant who is able to challenge only the order made by the Tribunal may well be effectively limited to such matters as a failure to give proper weight to prior good conduct or evidence of rehabilitation.

90 As a practical matter, it is almost inevitable that the findings which inform the conclusion that the conduct complained of is professional misconduct will also be of direct relevance in the exercise of the consequential power to make a protective order. Because these matters are not subject to review, there is a danger in describing the right of appeal with respect to the exercise of power as a “general appeal”, without noting the constraints on the scope of the appeal imposed, at least implicitly, by its statutory and litigious context.

91 Further, the nature of discretion itself varies, and the parameters of appropriate review need to be considered, according to the particular statutory context in which they arise. There are two additional factors which should be noted. First, there is the constitution of the Tribunal from which the appeal is brought. It is a body constituted by four persons, of whom two are registered medical practitioners, one a member of the public who is not a registered medical practitioner and a Chairperson, who is a District Court judge: Medical Practice Act, ss 147 and 148. The purpose of any order made upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted.

92 On the other hand, some indication as to the intended scope of the appeal against an exercise of power, may be derived from the powers conferred on this Court in determining the appeal. Thus, unless the appeal is dismissed, s 91(1)(b) provides that the Court may make such order “as it thinks proper having regard to the merits of the case and the public welfare”. This conferral of power does not in terms require the Court to make its own assessment of the facts, although its assessment of “the merits of the case” may well justify it drawing inferences from the facts found by the Tribunal. A judgment as to what is required having regard to “the public welfare” is seen by Parliament as one which may be exercised equally well by this Court as by the Tribunal.

Application of principles

93 In the present case, it was not suggested that the differences between the 1938 Act and the Medical Practice Act required any difference in approach to the operation of the appeal provisions. Similarly, it was accepted that the appeal being limited in its terms to a challenge to the exercise of the power to deregister the practitioner, it was not contended that the Appellant could challenge the findings of fact on which the conclusion as to professional misconduct was based. The Appellant relied upon the statement in the judgment of Clarke JA in Bannister set out at [84] above. However, to state the matter in that way provides little assistance in understanding the scope of the challenge which could be made to factual findings in considering the exercise of the power.

94 A difficulty which was faced by the Appellant was that some of the findings he wished to attack were contained in that part of the Tribunal’s judgment which addressed the question whether the conduct was “sufficiently serious to be professional misconduct” and were clearly relevant to that conclusion: [31]. It was not until [37] that the Tribunal turned to consider the appropriate order. If the challenge to these findings were to be successful, it would, to a material extent, undermine the decision of the Tribunal that the Appellant had been guilty in two respects of professional misconduct, but on grounds which would not constitute demonstrable errors of law and without identifying any underlying decision on a point of law. By reference to the principles identified above, this approach is not permissible.

95 In relation to the order to be made, it is clear that the consideration focused on whether the Appellant should be deregistered, or whether his right to practice medicine could be permitted to continue, subject to conditions. His legitimate arguments in that regard amounted to two propositions: first that the Tribunal had failed to have regard to relevant considerations, or at least had failed to address aspects of those considerations which were favourable to the Appellant, and, secondly, that the order made was disproportionately severe, having regard to the substance of the complaints.

96 In the present case, the best argument presented by the Appellant concerned the apparent failure of the Tribunal to advert expressly to the fact that he had complied with the conditions imposed on his licence for some 15 months prior to the hearing of the complaints, without apparent difficulty. This was said to be a relevant consideration having a material effect, in that it tended to undermine the conclusion reached by the Tribunal that, since re-registration, the Appellant had “acted in complete disregard for the conditions on his registration”: [42].

97 In its essence, the reasoning of the Tribunal involved the following steps:

(1) the practitioner had engaged in conduct of sufficient seriousness to warrant the removal of his name from the register;

(2) if that course were not taken, it would be necessary to devise appropriate conditions for his continued registration;

(3) the first complaint involved a failure to comply with a condition involving supervision, the non-compliance extending over a period of some five weeks;

(4) the sixth complaint involved a level of dishonesty;

(5) the practitioner was struck off before for conduct involving dishonesty;

(6) the Tribunal had “no confidence in the assurances and apologies for his actions offered to the Tribunal”, and

98 That approach did not reveal relevant error. It involved a finding in relation to his past conduct and a judgment, which flowed from that assessment, as to confidence about the future.

99 Of the specific matters complained of by the Appellant and set out by Santow JA at [9] above, each is a matter of fact or inference about which it is said that the Tribunal made no comment, or else drew an inappropriate inference. In relation to the first aspect, there is no reason to suppose that silence, in relation to a known and uncontested fact means that it was inappropriately disregarded; there is no obligation on the Tribunal to advert to every possibly relevant fact. The appropriate inference from silence is that the Tribunal did not consider that particular fact of any material weight. That was a course reasonably open to it in the circumstances. In relation to the second aspect, a complaint that the Tribunal drew an inference in terms which might have been more fully explained, or differently phrased, does not demonstrate that there was any error of the kind upon which the Appellant was entitled to rely.

100 So far as the Tribunal’s assessment of the evidence of the Appellant is concerned, it is difficult to see that the objective fact of compliance with conditions for some 15 months, pending resolution of the complaint, would be sufficient to overcome the assessment of his unreliability, based on his statement to the Court, objective facts relating to the non-compliance with earlier conditions and his evidence in the witness box. Whilst the 15 months of compliance may constitute an “incontrovertible fact” in terms of the language used in the joint judgment of Fox v Percy (2003) 214 CLR 118 at [28], it is not inconsistent with the finding made by the Tribunal: at best it is a matter which needed to be placed into the balance on one side, although the weight it might have been given was a matter for the Tribunal to assess. This material, taken in the context of the hearing before the Tribunal, was not a major plank of the practitioner’s defence, nor was it so obviously a weighty factor that his failure to rely upon it in express terms might be overlooked. Rather, it was but a piece of evidence, which, when given proper weight, would be unlikely to affect the conclusion reached. It might, of course, have been given greater weight if not followed by his evidence before the Tribunal, which was unsatisfactory in significant respects.

101 However, once that assessment of his past conduct was accepted, the judgment as to his character and the likelihood of his compliance with conditions in the future, was pre-eminently a matter for the Tribunal to assess. Nor can it be said that the result is so plainly unjust that this Court may infer that there has been a failure properly to exercise the discretion, on a basis not revealed in the Tribunal’s reasons. The result undoubtedly has harsh consequences for the practitioner, and the Tribunal expressly acknowledged that “it is a grave step to deprive a person of his living”: at [44]. Those ‘penal’ consequences must be weighed in the balance, but primary consideration must be given by the Tribunal, as it was, to the protective purpose of the order. The adverse consequences for a practitioner may require that no more restrictive an order should be made than is necessary for the proper protection of the community and the other proper purposes of such an order. But where deregistration can reasonably be seen as necessary in that sense, the order should not be overturned on appeal.

102 The appeal should be dismissed with costs.

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19/06/2006 - Corrected lower court file number on page 1 - Paragraph(s) heading

Citations

Prakash v Health Care Complaints Commission [2006] NSWCA 153

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CITATION:	PRAKASH v HEALTH CARE COMPLAINTS COMMISSION [2006] NSWCA 153 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	26 April 2006
JUDGMENT DATE:	16 June 2006
JUDGMENT OF:	Santow JA at 1; Tobias JA at 79; Basten JA at 80
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	MEDICINE – Medical Practitioners – Challenge to order made pursuant to s64(1) of the Medical Practice Act 1992 (“the Act”) for removal of appellant’s name from Register of Medical Practitioners – “unsatisfactory professional conduct” and “professional misconduct” within s37 conceded – dishonesty - not keeping a drug register – alleged disregard for or non-compliance with conditions on re-registration – observations on extent of appeal right under s90(1) of the Act and in particular as to whether in circumstances appellant could controvert findings of Tribunal on basis that they went to what was the appropriate order rather than the conceded professional misconduct.
LEGISLATION CITED:	Medical Practice Act 1992 s36; s37; s64(1); s90(1)(b) Medical Practitioners Act 1938 (NSW) s 32U
CASES CITED:	Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Bannister v Walton (1993) 30 NSWLR 699 Fox v Percy (2003) 214 CLR 118 Gayed v Walton (unrep, NSW Court of Appeal, 31 July 1997) Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 House v the King (1936) 55 CLR 499 Lindsay v Health Care Complaints Commission [2005] NSWCA 356 Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 Re Dr Than Le (Medical Tribunal decision, 20 September 2001) Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441 R v Connell; Ex parte Hetton Bellbird Collieries Ltd (No. 2) (1944) 69 CLR 407 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 Warren v Coombes (1979) 142 CLR 531
PARTIES:	Karanalu Vinatheya PRAKASH (Appellant) HEALTH CARE COMPLAINTS COMMISSION (Respondent)
FILE NUMBER(S):	CA 40080/05
COUNSEL:	S W GIBB, SC/ E H PIKE (Appellant) M G LYNCH (Respondent)
SOLICITORS:	Brock Partners (Appellant) Health Care Complaints Commission (Respondent)
LOWER COURT JURISDICTION:	The Medical Tribunal of New South Wales
LOWER COURT FILE NUMBER(S):	NSWMT 40004/04
LOWER COURT JUDICIAL OFFICER:	Judge A M Ainslie-Wallace, (Members: Dr M Pasfield, Dr E Kok, Ms A Deveson)
LOWER COURT DATE OF DECISION:	17 December 2004