Re Dr Paramalingam Lingathas
[2006] NSWMT 7
•14 September 2006
New South Wales
Medical Tribunal
CITATION: Re Dr Paramalingam Lingathas [2006] NSWMT 7 TRIBUNAL: Medical Tribunal PARTIES: Health Care Complaints Commission
Dr Paramalingam LingathasFILE NUMBER(S): 40016 of 2006 CORAM: Rein, SC DCJ CATCHWORDS: Admissibility of expert reports - applicability of legislative requirements to reports not commissioned by HCCC LEGISLATION CITED: Health Care Complaints Act 1993, ss 30, 39, 40, 90A, 90B
Health Legislation Amendment (Complaints) Act 2004
Medical Practice Act 1992, ss 36, 88, Sch 2 cl 1CASES CITED: ASIC v Rich (2005) 218 ALR 764; [2005] NSWCA 152;
Attorney-General's Reference (No 1 of 1988) [1989] AC 971; [1989] 2 WLR 729;
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305;
R v Reardon (No 2) (2004) 60 NSWLR 454; [2004] NSWCCA 197DATES OF HEARING: 24 August 2006 DATE OF JUDGMENT: 14 September 2006 LEGAL REPRESENTATIVES: Ms G Furness (HCCC)
Mr M Bozic SC (Dr)ORDERS: See [28].
JUDGMENT:
1 HIS HONOUR: On 30 May 2006, the Professional Standards Committee (“PSC”) established to enquire into a Complaint filed against Dr Paramalingam Lingathas, during the hearing of the Complaint rejected the tender of three reports. The Complaint had been filed following the death of Mrs Marie Bentley, upon whom Dr Lingathas had operated in January 2003 at Campbelltown Hospital. The Health Care Complaints Commission (“HCCC”), which had lodged and was prosecuting the Complaint, has appealed against the PSC’s decision to this Tribunal under s 88 of the Medical Practice Act 1992 (“ MPA ”). It was agreed that since the appeal relates to a question of law it is appropriate that the Tribunal be constituted by a Deputy Chairperson of the Tribunal sitting alone, rather than a full bench of four: see s 88(1) MPA . I shall refer to the complaint by Mrs Bentley’s husband as “the original complaint” to distinguish it from the formal “Complaint” made by the HCCC against Dr Lingathas: see Exhibit “A” Tab 1.
2 The operation that Dr Lingathas performed was removal of the patient’s gall bladder. The Complaint alleges that Dr Lingathas did not adequately manage the patient post-operatively in various respects, and asserts that thereby Dr Lingathas is guilty of unsatisfactory professional conduct ie “conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience”: s 36(1)(a) MPA .
3 The three reports in question are:
(1) report of Dr Philip Truskett dated 25 May 2005;
(2) report of Professor Ham dated 8 August 2005;
(3) report of Dr Simon Banting dated 6 June 2005.
4 The basis of the objection to the reports propounded by the solicitors for Dr Lingathas, Tress Cox, is contained within Annexure “G” to the affidavit of Ms Philippa Jane Hook of 10 August 2006, and had the following components:
(1) Section 30 of the Health Care Complaints Act 1993 (“ HCCA ”) sets out what the HCCC may do in investigating a complaint.
(2) What it is permitted to do is to obtain a report (from a sufficiently qualified or experienced person) “on the matter the subject of the complaint”.
(3) If the Commission seeks to obtain a report from a person the Commission is “to provide the person with all relevant information concerning the complaint that is in the possession of the Commission”.
(4) The reports of Professor Ham and Dr Banting did not comply because:
(a) the Commission did not comply with s 30(2A) of the HCCA ;
(b) they were not obtained by the Commission (but by others);
(c) the purpose for which the reports were obtained was not a purpose relevant to the HCCA ;
(e) the commissioning letters have not been provided.(d) it is not clear what facts are relied upon by the experts;
5 The PSC, formed by Associate Professor Belinda Bennett, Dr Donald Child and Dr Donald Tindal, ruled against admission of the reports. The basis of their decision is extracted at Annexure “H” to the affidavit of Ms Hook of 10 August 2006 and is in the following terms:
“It is the determination of the Committee that:
4. Section 30 of the Health Care Complaints Act is to be complied with when obtaining an expert report.
5. Section 30(2A) was not complied with in regards to Dr Truskett’s, Prof Ham and Dr Banting. The three Reporting Practitioners have not been provided [with] “all relevant information concerning the complaint that is in the possession of the Commission” nor had there been any attempt by the Commission to rectify this issue.
6. Even if the Committee accepted the Commission’s interpretation of s 30 of the Health Care Complaints Act , the Committee has concerns about the relevance and reliability of the reports [on] the following basis;
a. The reports were obtained for a different purpose to what they are being used for, and
Therefore documents 32, 37 and 38 will not be tendered into evidence at this Hearing.”.b. The [authors] have not been provided with any current information concerning this matter.
6 The HCCC by a Notice of Appeal dated 22 June 2006 appealed from that decision. A number of grounds in the Notice of Appeal were not pressed and the only two that remain are:
“… that the Professional Standards Committee:
(b) Erred in determining that the reports of Dr Truskett, Prof Ham and Dr Banting were required to comply with section 30 of the Health Care Complaints Act .”(a) Erred in determining that section 30 of the Health Care Complaints Act is to be complied with when obtaining an expert report.
7 Mr M Bozic SC, who appears for Dr Lingathas, argues that the PSC determination was based on two grounds, namely non-compliance with s 30(2A) of the HCCA, and because of the matters set out in para 6(a) and (b) extracted at [5] above, ie the fact that the reports were obtained for a different purpose and the authors were not provided with current information. Mr Bozic points to the word “therefore” in the PSC’s determination as indicating that the PSC should be taken to have rejected the reports on both grounds, an approach which is reflected in the Notice of Appeal itself (abandoned grounds (d), (e) and (f)).
8 If the PSC did intend to reject the reports on both grounds, since there is no appeal in relation to the second ground the appeal has no utility because determining that the PSC was wrong to reject the reports on the basis of non-compliance with s 30(2A) will not alter the outcome. There is a further complication in that Associate Professor Bennett has been appointed to the Medical Board and can no longer sit on the PSC. It was agreed that a new PSC will need to be constituted to hear the Complaint in any event, and hence the PSC that considers the matter will not be the same as that previously constituted.
9 Ms G Furness of counsel, who appears for the HCCC, emphasised that the decision on the s 30 point is one of considerable importance to the HCCC. Both counsel agreed there has been no previous determination of the Tribunal on the point. Whilst the Tribunal is not constituted in order to give judicial advice, in all the circumstances, particularly given the absence of an express indication that the PSC was rejecting the reports on the basis of both s 30(2A) and the other points, and the fact that the PSC will need to be reconstituted, I shall proceed upon the basis that the PSC did not intend to formally base its decision on the second ground, although I accept that it may well have intended to do so.
10 The HCCC’s argument that the PSC fell into error in rejecting the tender of the three reports has three components:
(1) that s 30(2A), having been introduced by amendment and effective as at 8 March 2005, has no application to complaints lodged prior to that date (the original complaint was lodged prior to March 2005) (the “retrospectivity point”);
(2) that s 30 does not deal with reports obtained after the completion of investigation by the HCCC;
(3) that s 30 does not apply to reports that were not commissioned by the HCCC.
Retrospectivity
11 The presumption in relation to the retrospectivity of legislation is described in Halsbury’s Laws of Australia , LexisNexis at [385-500] thus (footnotes omitted):
“There is a presumption that Parliament intends all statutes, except those which are declaratory, or related to matters of procedure, to operate prospectively and not retrospectively unless the language used plainly manifests in express terms or, by clear implication, a contrary intention. So unless a contrary intention is shown, a statute will not be construed as taking away or altering the incidents of accrued rights the title to which consists in facts or events which have occurred before its enactment. A statute which, if it does not affect such accrued rights, is not to be construed as taking away any wider category of such rights or as altering the incidents thereof to any greater extent than the statutory language clearly requires. All Australian jurisdictions have provided for the preservation of any right, privilege, obligation or liability acquired under an amended Act.”
12 The Amending Act ( Health Legislation Amendment (Complaints) Act 2004 ), has, through the insertion of clause 9 into Schedule 4 of the HCCA , detailed which amendments are to apply to complaints made on or after the commencement of the amendment (in March 2005) and which apply whenever the complaint was made. The amendment to s 30(2A) is not mentioned in either category. Give that other amendments were expressly mentioned as having retrospective operation, the absence of any express reference to retrospectivity in respect of s 30(2A), it was submitted by the HCCC, lent support to the argument that it was not intended that s 30(2A) be retrospective.
13 Both parties initially seemed to see the issue as being whether this amendment applies to all complaints whenever lodged or only to those complaints lodged on or after 2 March 2005. The HCCC submitted that if it applies to past complaints then it applies to past reports, and that would be a very strange result, so it should be viewed as relating only to complaints lodged after March 2005 and the original complaint was lodged before that date. It was submitted on behalf of Dr Lingathas that to apply s 30(2A) only to future complaints would not give force to the recognised exception to the retrospectivity principle for procedural amendments.
14 The answer in my view is to focus on the words of s 30(2A) – the legislation should be viewed as dealing with any report which the Commission seeks to obtain from 2 March 2005. The relevant amendment, which is procedural, is retrospective in the sense of applying to all complaints whether lodged before or after 2 March 2005, but in my view does not require the authors of reports obtained before 2 March 2005 to now be provided with information which was not previously provided to them. The contrary position would involve a reading of s 30(2A) that is very strained since it would impose upon the HCCC an obligation to do something in the past with which it could not comply.
Application of s 30
15 Section 30 of the Act provides:
“ 30 Expert assistance
(1) In investigating a complaint, the Commission may obtain a report from a person (including a person registered under a health registration Act) who, in the opinion of the Commission, is sufficiently qualified or experienced to give expert advice on the matter the subject of the complaint.
(2) The Commission may not obtain a report from a person who has a financial connection with the health practitioner against whom the complaint is made.
(2A) If the Commission seeks to obtain a report from a person under this section in relation to a complaint, the Commission is to provide the person with all relevant information concerning the complaint that is in the possession of the Commission.
(4) Such a report may be used in disciplinary or related proceedings under a health registration Act but may not be admitted or used in any other proceedings before a court, tribunal or body, except with the consent of the person giving the report, the complainant and the person against whom the complaint is made.(3) The person giving the report must include in it, or annex to it, a statement [in the form prescribed].
(6) In this section, report includes a copy, reproduction and duplicate of the report or any part of the report, copy, reproduction or duplicate.”(5) A person from whom such a report is obtained, the Commission or the Commissioner may not be compelled to produce the report or to give evidence in relation to the report or its contents in any such other proceedings.
16 Section 30 falls within Part 2 Division 5, headed “Investigation of complaints”.
17 Part 2 Division 6 headed “Outcomes of investigations into health practitioners” contains inter alia the following:
“ 39 What action is taken after an investigation?
(1) At the end of the investigation of a complaint against a health practitioner, the Commission must do one or more of the following:
(b) (Repealed)(a) refer the complaint to the Director of Proceedings,
(d) make comments to the health practitioner on the matter the subject of the complaint,(c) refer the complaint to the appropriate registration authority (if any) for consideration of the taking of action under the relevant health registration Act, such as the referral of the health practitioner for performance assessment or impairment assessment,
(e) terminate the matter,
(1A) The Commission is not required to take action under this section if it reviews its assessment of the complaint and takes action under section 20A.(f) refer the matter the subject of the complaint to the Director of Public Prosecutions.
(3) In this section, disciplinary body means a person or body (including a professional standards committee) established under a health registration Act that has the power to discipline a health practitioner or suspend or cancel (by whatever means) the registration of a health practitioner.(2) The Commission must consult with the appropriate registration authority before deciding what action to take.
40 Opportunity for persons investigated to make submissions
(2) Any such submission must be made in writing within 28 days after the health practitioner is so informed.(1) If, at the end of the investigation of a complaint against a health practitioner, the Commission proposes to do any of the things referred to in section 39(1)(a), (b), (c) or (d), it must first inform the health practitioner of the substance of the grounds for its proposed action and give the health practitioner an opportunity to make submissions.
(3) The Commission is not required by this section to inform a health practitioner of the substance of the grounds for its proposed action if:
(b) the practitioner has been notified by the appropriate registration authority of action to be taken pursuant to those provisions.(a) the grounds relate to the sufficiency of the physical or mental capacity of the practitioner to practise as a health practitioner under the impairment provisions of a health registration Act, and
Note. Section 40(3) will ensure that registration authorities can act to deal with impaired practitioners pursuant to any powers they may have under their respective health registration Acts, without awaiting advice from the Commission. The Medical Practice Act 1992 and the Nurses and Midwives Act 1991 contain such provisions.”
18 The HCCC, it will be observed, investigates complaints. By virtue of the amendments in 2005 a new statutory position of Director of Proceedings (“Director”) was created: see s 90A HCCA .
19 Section 90B provides:
“90B Functions of Director of Proceedings
(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,(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:
(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,
(b) to intervene in any proceedings that may be taken before a disciplinary body in relation to the complaint.
(2) In addition, the Director of Proceedings has any other functions conferred or imposed on the Director by or under this or any other Act.
(a) may at any time consult with a registration authority in relation to the exercise of any of the Director’s functions, and(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.
(5) While holding the office of Director of Proceedings, a person is not to exercise any function of the Commission other than a function referred to in subsection (1).”(4) The exercise by the Director of Proceedings of any function referred to in subsection (1) is taken to be the exercise of that function by the Commission.
Investigative Stage
20 The statutory scheme is that whilst the HCCC investigates, it does not make the decision to prosecute – that is the role of the Director. In forming a view on prosecution, s 90C mandates consideration by the Director of the protection of the health and safety of the public, the seriousness of the alleged conduct, the likelihood of proving the alleged conduct and any submissions made by the health practitioner concerned. Consultation with the appropriate registration authority is mandated before determining whether or not to prosecute: s 90B(3)(b).
21 In my view, the statutory scheme is for investigation by the HCCC followed by a process at the end of the investigation of inviting response from the practitioner (s 40 HCCA ), consultation with the registration authority, here the Medical Board, (s 39(2) HCCA ), and then the HCCC must take one or more of the steps set out in s 39(1)(a)-(f). It was conceded by Mr Bozic that by the time the HCCC received the three reports (see the affidavit of Ms Sarah Connors of 22 August 2006) the investigative stage envisaged by Division 5 had been completed and the next phase was in progress.
22 Mr Bozic accepted that in the face of the logic and structure of the HCCA , the argument advanced on behalf of Dr Lingathas could only prevail if the words “in investigating a complaint” in s 30(1) were viewed as extending beyond the investigations envisaged by Division 5. I do not read them that way. I think that given the place of s 30 within Division 5 and the use of the phrase in that context, “investigating a complaint” means the process dealt with by Division 5 and leading to one of the actions set out in s 39. The investigative stage (as Mr Bozic’s submissions point out) only commences after the Commission has followed the procedures set out in Division 4. Once one of the steps in s 39 is taken after investigation, and for example as occurred here the complaint is referred to the Director, I am of the view that s 30 has no direct application to reports obtained after that date. The reports in question were obtained by the HCCC after the investigative phase had been completed.
Reports Not Commissioned by the HCCC
23 There was another strand to the HCCC submissions, which was that s 30 can only be seen as dealing with reports that are commissioned by the HCCC, not reports obtained by the HCCC from third parties who have commissioned reports. Mr Bozic submitted that “obtain” should be read as “came into possession of”, not “commissioned” as contended for by the HCCC. He made reference to Attorney-General's Reference (No 1 of 1988) [1989] AC 971; [1989] 2 WLR 729, in which “obtain” was treated as not limited to “acquire by purpose and effort” but including “come into possession of” in s 1(3) of the Company Securities (Insider Dealing) Act 1985 and to dictionary definitions from the Macquarie Dictionary and Oxford Dictionary .
24 Mr Bozic in his submissions pointed to the fact that the PSC is not bound to observe the rules of law governing the admission of evidence (see clause 1 of Schedule 2 to the MPA ) and he argued that the absence of an entitlement to legal representation, the inapplicability of rules of evidence and the prima facie position that the inquiry is to be held in private “suggest that the inquiry is to be held with as little legal technicality and formality as possible” (para 7). Mr Bozic developed this further by asserting that the reading of s 30 that he advocated took into account the lack of formality before the PSC. Ms Furness pointed out that whilst it was true that representation was denied to both parties at a PSC hearing and that there was an informality about proceedings, the practitioner was entitled to be assisted at the PSC hearing. She also argued that informality did not mean that rules relating to expert reports were of no relevance. Matters of the type identified in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, she accepted, would appropriately be the subject of objection before a PSC (and implicitly before the Tribunal), a concession which I think is correctly made.
25 I am not persuaded that the provisions of the MPA have any bearing on how s 30 is to be interpreted or that if they do, they should alter what in my view is the clear purport of s 30(2A).
26 In my view, “obtain” in the sense of “commission” makes sense when used in each of s 30(1), (2) and (2A), whereas “obtain” in the sense of “come into possession of” does not. The HCCC may be given considerable material which includes reports of experts obtained by others, and it cannot have been intended that the HCCC could not as part of its investigations have regard to the opinions expressed in those reports. I think it is clear that the reports envisaged by these subsections are reports that are commissioned by the HCCC, although I do not think that the only reports which are covered are those that seek an opinion on the ultimate question (in this case, for example, whether the practitioner’s conduct “demonstrated that the knowledge, skill or judgment possessed, or care exercised … is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience”). In my view, any report commissioned by the HCCC even if it relates to, for example, a forensic test or biopsy, must meet the criteria set out in s 30(2A), so that any information held by the HCCC relevant to the subject matter on which the report is obtained is provided to the expert.
27 It follows in my view that s 30 and a fortiori s 30(2A) have no application to reports that were not commissioned by the HCCC. It follows that in the present case, s 30(2A) provides no basis for refusing to admit the reports. Nevertheless a failure of the HCCC as prosecutor to provide relevant material available to it to an expert whose report is relied on by it in the prosecution of the Complaint may be thought relevant on a discretionary basis, either alone or in conjunction with other matters, and to justify a refusal to admit the report, particularly given the existence of such a requirement in the investigative stage. The HCCC, I was told, adheres to the practices of a model litigant and it may well be that as a prosecutor it would be required to ensure that any expert retained by it was furnished with any relevant material held by it in accordance with principles developed in the Court in relation to the provision of documents (see R v Reardon (No 2) (2004) 60 NSWLR 454; [2004] NSWCCA 197). This issue and questions of the type raised in Makita v Sprowles (and see ASIC v Rich (2005) 218 ALR 764; [2005] NSWCA 152) and their application to the three reports were not explored in argument and I therefore refrain from expressing any firm opinion upon them.
28 I therefore uphold the appeal and remit the matter to the newly constituted PSC to determine the admissibility of the three reports in accordance with the law.
29 I will hear the parties on the issue of costs.
0
4
3