Roehrich v NSW Medical Board - [2004] NSWSC 1264

No judgment structure available for this case.

CITATION: ROEHRICH v NSW MEDICAL BOARD [2004] NSWSC 1264

HEARING DATE(S): 27-29 October 2004
18 November 2004

JUDGMENT DATE:
23 December 2004

JUDGMENT OF: Hulme J at 1

DECISION: See paragraph 99

PARTIES :
Dr Eckard Roehrich
NSW Medical Board

FILE NUMBER(S): SC 30090/04

COUNSEL: In person
Ms G Furness

SOLICITORS: In person
AE Dix

- 38 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HULME J

No: 30090/04

Thursday 23 December 2004

Dr Eckard ROEHRICH v NSW MEDICAL BOARD, Professor Walter GLOVER AND Dr Jennifer KENDRICK

JUDGMENT

1 HIS HONOUR: On 21 September 2004 Professor Glover and Dr Kendrick, purporting to act as delegates of the New South Wales Medical Board determined to suspend the Plaintiff, Dr Roehrich, from practising medicine for a period of 8 weeks, directing that such suspension become effective from the close of business on Friday 24 September 2004.

2 On 19 October 2004 Dr Roehrich filed in this Court a document described as a Statement of Claim seeking, inter alia, the following orders:-

1. Order that the determinations and decisions of the NSW Medical Board with respect to the matters referred to in this Statement of Claim be quashed.

2. Order that the NSW Medical Board unconditionally reinstate the Plaintiff’s licence to practise medicine as of 24/9/04.”

3 On the same date Dr Roehrich filed a Notice of Motion seeking the following:-

1. Interlocutory orders that the Decisions undertaken by the NSW Medical Board and its agents and representatives be quashed as pertains (sic) to the Statement of Claim.

2. Interlocutory orders that the Medical Board unconditionally reinstates the Plaintiff’s licence to practice medicine as from 24/9/04.

3. Orders for costs incurred by the Plaintiff to be paid by the Defendant.”

4 The matter came before me in the Duty Judge’s list on 27 October 2004 at which time Dr Roehrich sought urgently an order in terms of the second prayer in his Notice of Motion. Because of the ramifications to Dr Roehrich, I allowed the matter to continue for some portion of the next two days, notwithstanding the normal time limit on matters in the duty judge’s list. In the way that the matter proceeded it was agreed on all sides that the proceedings should be regarded as an application for final relief by way of quashing of the decision to suspend.

5 On 29 October I reserved my decision. On 2 November 2004, Dr Roehrich forwarded to my chambers some further submissions. No leave to do so had been reserved and, when contacted, the legal representative of the Board opposed them being considered. Dr Roehrich then filed a Notice of Motion and on its return, over opposition, I concluded that I should consider the further submissions, giving the Board the opportunity to reply. Submissions in response were received on 19 November.

6 Before I turn to the merits of the case it is appropriate to say a little about the way in which the application proceeded and to refer to at least some of the relevant statutory provisions.

7 Dr Roehrich’s Statement of Claim, if one ignores the prayers for relief, takes more the form of an affidavit than a Statement of Claim, the strictures in Part 15 Rule 7 not having been obviously adhered to. It was verified in the form appropriate for an affidavit verifying a pleading and not in the form for an evidentiary affidavit. However, it was agreed that, without further verification, I could treat the document as an Affidavit by the Plaintiff. Apart from that document and its annexures (which I will continue to refer to as a Statement of Claim) the only other evidence consisted of two Affidavits by Andrew Dix, the Registrar of the New South Wales Medical Board, which did little more than annex further documents, and some additional documents which were tendered. There was no cross-examination.

8 The section of the Medical Practice Act under which Professor Glover and Dr Kendrick purported to act was Section 66 which, so far as is relevant, provides:-

(1) The Board must, if at any time it is satisfied that such action is necessary for the purpose of protecting the life or physical or mental health of any person:

(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

(b) impose on a registered medical practitioner’s registration such conditions, relating to the practitioner’s practising medicine, as it considers appropriate.

(2) The Board may take such action:

(a) whether or not a complaint has been made or referred to the Board about the practitioner; and

(b) whether or not proceedings in respect of such a complaint are before the Tribunal or a Committee.

9 Section 95 of the Act provides an entitlement to appeal to the Medical Tribunal against a suspension under Section 66. Section 95(3) provides that such an appeal must be made within 28 days or such longer period as the Registrar may allow.

10 Part 4 of the Act, which includes Section 66, provides for the making of complaints about medical practitioners and contains provisions specifying how those complaints are to be dealt with. Part 5A of the Act is headed “Performance Assessment” and contains a number of provisions which were also the subject of consideration in the proceedings before me. They, and one other provision which may be relevant, include the following:-

86C The Board may have the professional performance of a registered medical practitioner assessed under this Part if any matter comes to its attention that indicates that the professional performance of the registered medical practitioner, or any aspect of the practitioner’s professional performance, is unsatisfactory. This is not limited to matters that are the subject of a complaint or notification to the Board.

86D (1) The Board must not have the professional performance of a registered medical practitioner assessed under this Part if a matter giving rise to the proposed assessment:

(a) raises a significant issue of public health or safety, or

(b) raises a prima facie case of professional misconduct by the registered medical practitioner, or unsatisfactory professional conduct by the registered medical practitioner of a significant nature.

(2) Any such matter is to be dealt with as a complaint.

86G The Board has the professional performance of a registered medical practitioner assessed by having one or more assessors conduct an assessment of the practitioner’s professional performance, or of any particular aspect or aspects of the practitioner’s professional performance.

86H (1) As soon as practicable after deciding to have the professional performance of a registered medical practitioner assessed, the Board is to inform the practitioner in writing of that decision.

(2) The information given to the practitioner is to include the following:

(a) details of the matter or matters that gave rise to the assessment,

(b) information about how the performance assessment process under this Part works.

86J (1) After receiving the report of an assessor, the Board may:

(a) …

(2) The Board must make a complaint against the practitioner concerned if the assessment:

(a) raises a significant issue of public health or safety, or

(b) raises a prima facie case of professional misconduct by a registered medical practitioner, or unsatisfactory professional conduct by a registered medical practitioner of a significant nature.

(3) This section does not limit the Board’s powers under section 66.

11 Schedule 3A to the Act contains a number of provisions relating to performance assessments. It gives an assessor wide ranging powers. An assessor may at any reasonable time enter and inspect any premises that the assessor reasonably believes are used by a registered medical practitioner in connection with his practice providing notice is given. The assessor has power to examine equipment or drugs on premises so entered, power to require any person on the premises to produce records relating to the carrying out of a professional practice, power to take copies of those records, power to ask questions of any person on the premises and power to require the occupier to provide the assessor with such assistance as is reasonably necessary.

12 An assessor may by notice require the registered medical practitioner who is the subject of assessment to take part in the assessment exercise – an event described as “an exercise during which the assessor observes and assesses the professional performance of the registered medical practitioner”. Sub-sections 3(6) and (7) of Schedule 3A of the Act provide:-

(6) A failure or refusal by a registered medical practitioner to take part in, or to continue with, an assessment exercise does not constitute an offence against clause 5.

(7) However, a failure or refusal by a registered medical practitioner, without reasonable excuse, to take part in or to continue with an assessment exercise is evidence that the professional performance of the registered medical practitioner is unsatisfactory.

13 Dr Roehrich obtained his medical degree in 1971 from the University of Kiel Medical School. In September 1982 he passed the Australian Medical Council examination, between 1982 and 1985 he was employed as a surgical registrar in Sydney and New South Wales Central Coast Hospitals and since 1985 he has been in private practice as a general practitioner. It is unnecessary to set out all of Dr Roehrich’s qualifications or attainments but it is appropriate to quote from two paragraphs of the Statement of Claim:-

19. From 1985 until 24/9/04 I practiced Integrative medicine which is a combination of orthodox and evidence-based complementary medicine including nutritional and environmental medicine. My type of medical practice is sometimes referred to as holistic medicine.

20. For a period of eighteen years, until 2000 I had never been contacted by the NSW Medical Board (the Board) regarding any practice issue or complaint.

14 In fact according to a summary of previous complaints there seems to have been a complaint in about December 1997 and, since the beginning of the year 2000, another six. As the contents of this summary, although at times cryptic and unexplained during the hearing before me, may be important, it is appropriate to quote from it, at least in part. The form of the document provided a number of boxes with titles and entries. So far as presently relevant these were as follows (Not all were completed.):-

15 The complaint summary in respect of the first complaint included:-

Complainant	Ms …
Received Date
Complaint Category	Treatment
Complaint Sub Category
Hearing Type	Medical Tribunal Hearing (c)
Assessment	2 Discontinue Dealing With
Outcome	2 Discontinue Dealing
Outcome Date	16/12/97

16 The complaint summary in respect of the second complaint included:-

Complainant	PSB
Received Date
Complaint Category	Prescribing
Complaint Sub Category	Incorrect/inappropriate
Hearing Type	Medical Tribunal Hearing (c)
Assessment	7 Investigation – formal
Outcome	MT Medical Tribunal
Outcome Date	19/6/2001

17 The complaint summary in respect of the third complaint included:-

Complainant	Ms …
Received Date	06/03/2000
Complaint Category	Communication
Complaint Sub Category	Incorrect/Misleading informatio (sic)
Hearing Type	Medical Tribunal (c)
Assessment	4C Refer to Med Bd
Outcome	BDLT Letter from Board
Outcome Date	05/12/2000

18 The complaint summary in respect of the fourth complaint included:-

Complainant	Mr…
Received Date	29/06/2001
Complaint Category	Treatment
Complaint Sub Category	Incorrect/inappropriate treatment
Hearing Type	Medical Tribunal Hearing (c)
Assessment	8 PSO Direct Res with PSO
Outcome	8 PSO Direct Res with PSO
Outcome Date	21/08/2001

19 The complaint summary in respect of the fifth complaint included:-

Complainant	Mrs …
Received Date	13/03/2002
Complaint Category	Diagnosis
Complaint Sub Category	Failure to diagnose
Hearing Type	Medical Tribunal Hearing (c)
Assessment	4C refer to Med Bd
Outcome	8 PSO Direct Res with PSO
Outcome Date	20/05/2002

20 The complaint summary in respect of the sixth complaint included:-

Complainant	Miss …
Received Date	12/08/2002
Complaint Category	Treatment
Complaint Sub Category	Inadequate Treatment
Hearing Type	Medical Tribunal Hearing (c)
Assessment	4C Refer to Med Bd
Outcome	NFA No Further Action
Outcome Date	14/02/2003

21 The complaint summary in respect of the seventh complaint included:-

“The cpt claims the Dr was very rude and abrupt towards the pt’s family. Issued instructions to the pt’s parents in an abusive manner.”

22 Some of the other entries in respect of this complaint were:-

Complainant	Mrs N…
Received Date	18/07/2003
Complaint Category	Communication
Complaint Sub Category	Insensitive/rude
Hearing Type	Medical Tribunal Hearing (c)
Assessment	REFPC Refer to Performance Committee
Outcome
Outcome Date

23 Another page, differently entitled as “Performance Committee” “Consolidated Registrant History” but which would seem to form part of the summary of complaints provides more information concerning this last complaint. It says:-

“Mrs N took her 6 year old daughter to the doctor because she was vomiting, cold, headaches, high temperature, sore tummy and armpits and had recently been in hospital with pneumonia. Doctor yelled at the mother to stop feeding her dairy, red meat and chicken. He said there was no sign of any pneumonia recurring and to give the child 2 litres of water with 12 sachets of Gastrolyte and have her vomit and have diarrhoea to purge her of the bad stuff in her gut.”

24 Other evidence before me indicates that a hearing before the Medical Tribunal in respect of the second of these complaints was held in 2002. A Board letter said that a decision was pending in November 2003 but, according to Dr Roehrich, aborted in May 2004, for reasons not apparently having anything to do with Dr Roehrich’s fitness. Another hearing is to occur.

25 There was also in the case of each complaint a short summary of it but the document does not include the details of any response Dr Roehrich may have made. Despite the references to the Medical Tribunal in the summaries relating to a number of the complaints, my impression from the evidence before me is that no complaint but the second was referred to that body.

26 On 1 August 2003 the HCCC apparently forwarded a copy of the letter constituting Mrs N…’s complaint to the Plaintiff. In paragraph 56 of the Statement of Claim the Plaintiff said he did not have time to answer the complaint immediately.

27 On 1 September 2003 the doctor gave evidence in the Supreme Court on behalf of the family of a child who was forced against her wishes and the wishes of her family to undergo chemotherapy. He said (paragraph 57) “from the Court documents I noted the oncologist who forced the treatment was very hostile to me.”

28 In addition to matters to which I have referred, other matters were canvassed in the Plaintiff’s Affidavit. It is unnecessary for me to refer to these in detail but they include statements to the effect that the Plaintiff’s suspension has left many patients stranded without a doctor and contrasting what has occurred in his case to an article in the Sydney Morning Herald wherein it is reported that 4 doctors had been cleared of poor practice after the inquiry into the deaths of 19 patients at Camden and Campbelltown Hospitals.

29 On 17 September 2003 the NSW Medical Board wrote to the Plaintiff. Inter alia, the letter said:-

“The Medical Board has recently been notified of information that may indicate that your professional performance has fallen below the standard reasonably expected of a practitioner of an equivalent level of training or experience. This information was received from Mrs N….

This notification was referred to the Performance Committee of the NSW Medical Board. This triggering notification from Mrs N… was reviewed along with the summaries of all previous complaints that have been made against your practice. It was resolved that a Performance Assessment be undertaken to determine whether you need to enter into the Performance Assessment Program

This is specifically designed to be educative rather than disciplinary in its focus.

to provide an indication of the issues that may need to be addressed in the course of the Performance Assessment

There is no investigation or determination in relation to any individual complaint in a Performance Assessment.

You are most welcome to forward to the Board a written response to this complaint made by Mrs N … . Your response will be included in the Performance Assessment Briefing documents that will be sent to both the assessors.

I have enclosed a copy of the Performance Assessment Program Participant’s Handbook which explains the Performance Assessment in detail. I have also enclosed a copy of the complaint made by Mrs N … .

Before an assessment can be scheduled to occur, the Board requires some basic information about your practice. Please send to the Board as soon as possible:-

(1) the enclosed Pre-Visit Questionnaire form; completed, signed and dated;

(2) a copy of your present Professional Indemnity Insurance policy;”

…

30 (In light of some of the issues which subsequently arose, I have taken the liberty of underlining some of the passages from that letter.)

31 In a letter of 6 October Dr Roehrich responded:-

“Re complaint by Mrs … N…

I have read your letter dated 17 September 2003 and need to receive answers to the following questions before I address this matter any further.

1. Why did I not get an opportunity to respond to the above complaint before the decision was made to refer this matter to the Performance Committee of the NSW Medical Board?

2. In the view of the NSW Medical Board, do I or do I not have the right to answer the above complaint prior to any judgement being made about my performance?

3. What is the legal basis for the decision to refer this matter to the Performance Committee of the NSW Medical Board?

4. Who in the NSW Medical Board made the decision to refer this matter to he Performance Committee of the NSW Medical Board?

5. What is the legal basis for including into the Board’s decision process the reviewing of summaries of previously resolved matters?

I await your reply at your convenience.”

32 By letter of 6 November, the Medical Board replied saying, inter alia:-

“I refer to your letter of 6 October 2003 in which you pose 5 questions relating to the complaint by Ms N… .

The Performance Assessment Program is a non-disciplinary program and is aimed at the early identification of practitioners whose professional performance may have slipped below an acceptable level. The program allows for peer assessment of all aspects of the doctor’s practice, and where deficiencies are identified, for the doctor to improve these deficient areas.

The Performance Committee’s decision that you should participate in the Performance Assessment program was triggered by the complaint from Ms N … in her Statutory Declaration to the Health Care Complains Commission dated 3/7/03. The Committee also considered the previous complaints that have been made against you. Most of these complaints did not individually reach the threshold for formal disciplinary action, although it was noted that one complaint resulted in a Medical Tribunal held on 20/5/2002 (decision pending). When viewed in totality, the Performance Committee formed the view that your complaint history may indicate that your professional performance has slipped below an acceptable level.

A final judgement about your professional performance will not be made until after the Performance Assessment is undertaken. The outcomes of the Performance Assessment focus on the remediation of any area found to be deficient. If no deficiencies are identified by the Assessors, then no further action will be necessary.

As advised in our correspondence of 17 September 2003, you are most welcome to provide a response to Ms N …’s complaint, and this will be made available to the Assessors. As also previously advised, previous complaints will not be re-opened or investigated in the course of the Performance Assessment. Similarly, there will be no specific determination in relation to Ms N …’s complaint.

Section 49(1) of the Medical Practice Act, 1992 as amended requires the Board and the Health Care Complaints Commission to consult as to the course of action to be taken in relation to a complaint about a registered medical practitioner. As Ms N …’s complaint did not appear to raise issues that required investigation with a view to disciplinary action, the matter was referred to the Board for consideration by the Performance Committee.

Section 86C of the Medical Practice Act, 1992 as amended states that… (The section, set out above, was quoted.).

It is worth emphasising again that an assessment is not a disciplinary process, it is an opportunity to assess a practitioner’s overall professional performance rather than investigate specific incidents. Performance assessment provides practitioners with an opportunity, where necessary, to bring about positive change in their practice of medicine.

33 On 5 January 2004 the Plaintiff wrote again to the Board. The document was headed “NOTICE OF DEMAND” and said, inter alia:-

“I am responding to your letter of 6 November 2003 wherein you… failed to answer 5 questions in my letter dated 6 October 2003. ….

This Notice of Demand arises pursuant to the following facts:-

1. The Health Care Complaint Commission (HCCC) received an unsubstantiated complaint about me from Ms N … .

2. On 29 July 2003 the HCCC sent me a letter about this complaint stating “the Commission has assessed this complaint as suitable for referral to the NSW Medical Board for action. The NSW Medical Board has been asked to resolve the complaint directly between you [myself] and the complainant.

3. In its first letter dated 17 September 2003 regarding this matter the NSW Medical Board informed me about its decision to refer the matter to the Performance Committee of the Board, to send two assessors to my practice to conduct the assessment and to request “some basic information about your [my] practice”. All this without first giving me an opportunity to reply to the complaint.

4-5 (In these paragraphs the Plaintiff quoted or referred to the letters of 6 October and 6 November.)

6. The Board’s letter dated 17 September 2003 states as the basis for its decision: ‘This triggering notification from Mrs N … was reviewed along with the summaries of all previous complaints that have been made against your practice.’

7. The Board based its decision on frivolous and vexatious previous complaints against my practice including:

….

8. The Board’s letter dated 6 November 2003 further states: “Most of these complaints did not individually reach the threshold for formal disciplinary action, although it was noted that one complaint resulted in a Medical Tribunal held on 20/5/02 (decision pending).”

34 The Plaintiff then went on to assert a right to dispute the validity of the Board’s decision, that he had a right of reply, that the Board had a “duty of care obligation to substantiate its allegations” and “no right to presume an outcome in an unadjudicated matter before the Medical Tribunal with the intention of using this fiction as a basis for its actions.” The letter concluded:-

“TAKE NOTICE that pursuant to the facts in paragraphs 1 to 8 you are required within 14 days of the service of this Notice of Demand upon you to:

1. Answer the five questions listed above in paragraphs 4.1-4.5.

2. Show reasonable and just cause as to why the Board determined its decision to refer my practice to the Performance Committee and its intention to send assessors to my practice on the basis of:

2.1 Previous matters that have been settled and none resulted in any disciplinary actions.

2.2 A matter presently before the Medical Tribunal which has not yet been adjudicated and which did not arise from a patient complaint.

2.3 A complaint by Ms N … to which the Board has denied me the opportunity of a reply prior to the Board’s decision.

2.4 The frivolous and vexatious complaints as referred to in paragraph 7.

TAKE NOTICE that failure within 14 days to answer ALL my aforesaid Demands or to demonstrate proper defence against ALL the facts upon which this demand is founded then it shall be taken that the NSW Medical Board:

1. Admits the facts as said are correct.

2. Admits that the demands of this Notice of Demand are proper and reasonable and that the Board has failed to follow due process.

3. Agrees that this matter is at an end.”

35 The Board replied by letter of 15 January indicating it did not accept the assertions made in the Notice of Demand and observing that, despite the invitations in its letters of 17 September and 6 November to the Doctor to provide a response to Mrs N’s complaint, none appeared to have been received. The letter said that there was enclosed with it a copy of the provisions of Part 5A of the Medical Practice Act and advised the Plaintiff he would be contacted by the Board’s Performance Manager to arrange an appointment for Performance Assessors to attend at his practice.

36 On 9 February Dr Roehrich responded. The document is headed, “NOTICE OF DEFAULT”. In it Dr Roehrich refers to his “NOTICE OF DEMAND” of 7 January and to the fact that 14 days had passed, asserts that the Board has failed to respond in respects specified and that the Board was “in DEFAULT of the Notice of Demand”. The letter concluded:-

“TAKE NOTICE that your failure to comply with the Notice of Demand and/or disprove that facts of the notice show that you admit that:

1. The facts as stated in the Notice of Demand are correct.

2. The claims as stated in the Notice of Demand are correct.

3. The demands of the Notice of Demand are proper and reasonable and that the NSW Medical Board has failed to follow due process.

4. Pertaining to this matter the NSW Medical Board has no authority to assess my professional performance.

4(sic) This matter is at an end.”

37 On 25 February the Board replied asserting that the Doctor’s purported Notices of Demand and Default had no legal status.

38 On 3 June the co-ordinator of the Performance Assessment Program, a Ms Mackowski, spoke to the Plaintiff by telephone and informed him that the assessment would occur on 30 July and of the names of the Assessors who would be carrying it out. On 4 June Ms Mackowski wrote again giving this information. In the phone call the co-ordinator was informed that the Doctor would not consent to the assessment happening.

39 On 16 July 2004 Ms Mackowski wrote again to the Plaintiff advising that the performance assessment was scheduled for Friday 30 July at the Plaintiff’s premises. The letter enclosed what was referred to as a “Performance Assessment Briefing” and which included a July 2004 printout of the summary of complaints to which I have referred.

40 Shortly before 19 July the Plaintiff wrote asking for the Curricula Vitae of the 2 assessors. Some particulars of their qualifications and practice were then supplied to him.

41 On 28 July the doctor wrote another “Notice of Demand” this time extending to five closely typed pages. It set out in some detail the history of the matter and repeated much that had been said before. However, the letter extended beyond this.

42 Dr Roehrich denied, in some detail, the contents of the complaint by Mrs N… and also made answer to, or comments upon, the other matters referred to in the summary of complaints. Without attempting to be exhaustive, Dr Roehrich’s responses to the complaints included the following. (I shall follow the chronological order adopted above).:-

(i) An account of events which, if accepted, meant that there was no substance in the complaint.

(ii) An account of events which, if accepted, meant that there was no substance in the complaint. It was also asserted that the matter was now in its eighth year without adjudication.

(iii) A denial of the substance of this complaint, an attack on the credibility of the complainant and an acknowledgement of a letter from the Board in consequence of the complaint.

(iv) Reference to the fact that the complainant was a drug addict and an assertion of a right to refuse to prescribe drugs of addiction on demand.

(v) An account of events which, if accepted, meant that there was no substance in the complaint.

43 Dr Roehrich further claimed that, in light of earlier responses to the complaints and/or the way they had been dealt with, they could provide no reasonable basis for any decision to subject him to a Performance Assessment. For example, as to the complaint which I have numbered 3, he said:-

“I require the Board to provide me with a lawful basis upon which it includes this “complaint” in the brief in the first instance and why the summary stands unbalanced under the heading of “incorrect/inappropriate treatment” which statement forms the foundation for any reasonable person to incorrectly form an inference of guilt on my part.

I require the Board to provide me with a lawful basis upon which it cites this matter, represented as a complaint against me, as grounds to exercise the powers of entry, under the Act, on to my premises without my consent.”

44 Although differing in detail, somewhat similar demands were made in connection with the other complaints.

45 So far as Mrs N’s complaint is concerned, Dr Roehrich denied the allegation of rudeness and insensitivity and said that he diagnosed a clear case of gastroenteritis, prescribing rehydration until the mother could return to he usual doctor on the following day. He asserted that this was appropriate treatment.

46 In the letter the Plaintiff also went on to assert that the Board’s powers of entry, conferred under the Act, did not arise until reasonable cause was established, that under Section 86H of the Act, the Board was obliged to inform him of details of the matters giving rise to the performance assessment before it applied the powers of the Act and the Board had a duty to adhere to procedural fairness prior to embarking upon actions against the Plaintiff which would otherwise be oppressive or illegal and that the Board had failed to observe proper procedures and laws. The letter concluded:-

“Demands

Take Notice that you are required within 14 days of the service of this Notice of Demand upon you:

1. To demonstrate a proper defence against all the Facts and Claims upon which this Notice is founded.

2. To Answer the aforesaid Demands herein as demarcated in italics and contained within paragraphs 10 to 15.4.

Take Notice that failure within 14 days to comply with the aforesaid Demands AND failure to demonstrate a proper defence against all the Facts and Claims upon which this Notice of Demand is founded then it shall be taken that the NSW Medical Board and its representatives:

1. Admit the facts as said are correct AND

2. Admit that the claims arising from the said facts are proper and reasonable AND

3. Admit that the demands of this Notice of demand must be complied with AND

4. Admit that the complaints against me as herein stated are at an end and cannot be further used by the Board for any purpose whatsoever now or in the future and will be expunged from the Board’s record. AND

5. Admit that I am entitled to apply to the Court for summary judgement for orders pursuant to the demands and claims as herein stated including claims for damages.

6. Admit that the NSW Medical Board has improperly exercised its power.”

47 On 30 July Ms Mackowski attended at the Plaintiff’s surgery with two other persons who, one may infer, were the named assessors. Ms Mackowski was informed by the Plaintiff’s receptionist that she had no appointment and the inference is clear that the Plaintiff refused to participate in any assessment.

48 There seemed to have then been some oral and written communications between a representative of the Board and the Plaintiff or his receptionist and information given to the Plaintiff that his failure to take part in a performance assessment constituted grounds to institute an inquiry under s66 of the Medical Practice Act. On 7 September the Plaintiff wrote to the Board a “Notice of Default” referring to his Notice of Demand of 29 July, asserting that the Board had failed to demonstrate a proper defence against the matters stated in the earlier notice and asserting:-

“… it shall now be taken that the NSW Medical Board and its representatives have:

1. Admitted the facts as said in the Notice of Demand are correct AND

2. Admitted that the claims arising from said facts of the Notice are proper and reasonable AND

3. Admitted that the demands of the Notice must be complied with AND

4. Admitted that I am entitled to apply to the Court for summary judgement for orders pursuant to the demands and claims as stated in the Notice, including claims for damages. AND

5. Admitted that the Board and its representatives have improperly exercised its power. AND

6. Admitted that the Board has pressed and/or given rise to vexatious, unlawful and contrived complaints which has constituted harassment and as such the Board:

49 On or about 7 September the Plaintiff was informed that the Board’s performance committee had determined to refer him to an Inquiry pursuant to s66 of the Act.

50 There followed a “Notice to Produce Further and Better Particulars” signed by the Plaintiff on 14 September 2004. The tenor of the document was of the same general nature as those he had written earlier and which I have quoted above, albeit relating more to the grounds for the inquiry rather than the performance assessment.

51 As has been said, an inquiry under s66 was held on 21 September before Professor Glover and Dr Kendrick. Before I turn to consider that event, it is convenient to deal with the issues which seem to me to arise under the Medical Practice Act in relation to the performance assessment. A convenient starting point is to note the nature of the assessment procedure which is the subject of Part 5A of the Medical Practice Act. Although an assessment may lead to the making of a complaint, or a review of a practitioner’s professional performance by a Performance Review Panel, or one of the other courses referred to in Section 86J of the Act, an assessment cannot of itself affect a practitioner’s right to practice nor be regarded in any sense as of a disciplinary nature. True it is that the powers given to assessors are calculated to involve some imposition of the time of the practitioner or other persons and the privacy or confidentiality of his records but, considered against the totality of sanctions for which the Act provides and the importance of ensuring that medical practitioners’ professional performance is adequate, this interference can only be regarded as of a minor or relatively minor nature.

52 The relatively low threshold before the Board is entitled to require a performance assessment should also be noticed. Although Section 86C contains the words “is unsatisfactory” rather than for example the lower standard of “may be unsatisfactory” the reference in the section to “indicates” rather than for example “proves”, “demonstrates” or “shows” makes it clear that the test for a decision to require an assessment is not high.

53 It is unnecessary for me to set out at length Mrs N...’s complaint against the Plaintiff. The summary I have quoted is sufficiently accurate to give a reasonable understanding of the complaint and the complaint was clearly sufficient to enable the Board to take the view that that it “indicates that the professional performance” of the Plaintiff is unsatisfactory. That is not to say the Board was bound to take that view or, taking it, bound to require a Performance Assessment. However these were decisions for the Board, not this Court.

54 Furthermore, the letter of 17 September 2003 from the Board indicates that prior to deciding to having an assessment the Board reviewed “the summaries of all previous complaints that have been made against your practice”. Certainly it is difficult to see how the summary of a complaint, the outcome of which was “no further action” could have provided any basis for a decision to have an assessment. However, apart from that by Mrs N..., the Plaintiff had been the subject of six other complaints referred to in the summary only one of which led to an outcome of “no further action”. I do not know the significance of some of the other descriptions of the outcome such as “8 PSO Direct Res with PSO”. Nor do I know how the number of complaints against the Plaintiff compares with the number of complaints generally lodged against medical practitioners. In these circumstances I am not satisfied that the Board could not upon the basis of the number of complaints see an indication that the Plaintiff’s professional performance was unsatisfactory. Indeed the Board’s letter of 6 November for example, at least suggests that it was the number of complaints upon which the Board, in part, relied.

55 However the terms of the letter of 17 September 2003 indicate that the Board did not apply the correct test in deciding to have a Performance Assessment. I have pointed out that the test in Section 86C is a matter coming to the Board’s attention “that indicates that the professional performance of the registered medical practitioner… is unsatisfactory”. The opening paragraph of the letter of 17 September 2003 was in terms:-

may

56 There is nothing otherwise in the letter or in the evidence which persuades me that the words I have just quoted were not the criterion by which the Board made its decision. It is true that in the Board’s letter of 15 January the word “indicates” is used but in the letter of 6 November the reference is again to “may indicate”. In the Board’s letter of 15 January 2004 the language used is “may be unsatisfactory”. In these circumstances my conclusion is that the Board applied the wrong test and its decision to require a Performance Assessment miscarried.

57 Before turning to the consequences of that conclusion it is appropriate in light of the issues raised by the Plaintiff in his correspondence with the Board to say something further about the Board’s obligations prior to making a decision under Section 86K. The tenor of much of that correspondence was to indicate that the Plaintiff has conceived himself entitled to advance notice that consideration was being given to the making of such a decision and of the matters which the Board was minded to take into account and provided with the opportunity of responding.

58 I was not referred to any previous decisions where this question has been considered in the context of Section 86C or any similar provision and neither am I aware of any such decision. In light of the other conclusions at which I have arrived, it is not necessary that I explore the topic at great length but in my view the Plaintiff had no such rights.

59 This is not the occasion for an exegesis as to when the rules of natural justice entitle a party to be heard but there is a reasonably clear distinction between occasions which are liable to affect rights (where there is almost invariably a right to be heard) and those which may be regarded as of an investigatory nature (where generally there is no such right). Although, as I have recognised, a performance assessment does involve some interference with a practitioner’s rights, that interference is of such a relatively minor nature that it does not seem to me the Plaintiff had the entitlement which he asserted. In this connection reference might usefully be made to Testro Bros Pty Ltd v Tait (1963) 109 CLR 353 at 362-3; Ex parte Mineral Deposits Pty Ltd; re Claye and Lynch (1959) SR NSW 167 at 176.

60 It may also not be inappropriate to record my view that most of the Plaintiff’s questions were, if not in terms, in effect answered in the Board’s letter of 6 November 2003 which referred to them. A fair reading of that letter indicates that the Plaintiff was not given expressly the opportunity to which he referred in question 1 because the Performance Assessment program was non-disciplinary. However it should also be said that, having received the complaint of Mrs N… on 1 August, the Plaintiff had had, appreciably before 17 September, an opportunity to respond to it. Neither the complaint nor, judged by what Dr Roehrich said in his letter of 28 July 2004, his answer, was of such a nature that it could be said he had not had the opportunity of responding. Question 2 was reasonably answered by the Board making it clear that no final judgment would be made about the Plaintiff’s professional performance until after the assessment and that he had been and was again invited to respond to the complaint of Mrs N.

61 Question 3 was answered by the reference to and quotation of Section 86C of the Medical Practice Act. Question 5 was answered by the quotation of s86C and reference to the fact that the Performance Committee had formed the view the complaint history may indicate the Plaintiff’s professional performance had slipped below an acceptable level. The letter of 17 September had made it clear that the summaries of previous complaints had been adverted to “to provide an indication of the issues that may need to be addressed in the course of the Performance Assessment.”

62 Question 4 was not answered. However, there is nothing to suggest any conceivable entitlement in the Plaintiff to have had it answered.

63 I need say little about the correspondence from the Plaintiff subsequent to his letter of 6 October 2003. Much of it was at least illogical, if not irrational in its terms.

64 Section 86H of the Act also bears consideration. The requirement in subsection that “the Board is to inform” the practitioner and in subsection 2 that “the information given… is to include… details of the matter or matters that give rise to the assessment…” lead to the conclusion that the informing referred to in subsection 1 is to include the information referred to in subsection 2. The choice of language leads to the view that it is not sufficient compliance with subsection 2 merely for the information referred to in that subsection to be given at some later time. After all, all of the information referred to in subsection 2 would be within the knowledge of the Board at the time of its decision and at the time it informed the practitioner of that decision.

65 The Board did not comply with Section 86H in that it did not “as soon as practicable inform the Plaintiff of details of the matter or matters that gave rise to the assessment.” The letters of 17 September and 6 November make it clear that the matter or matters that gave rise to the Board’s decision to have an assessment were the complaint by Mrs N together with “summaries of all previous complaints that had been made against your practice”. No such summaries were provided to the Plaintiff until 16 July 2004.

66 In fact the summary provided at that time was a computer printout dated 14 July 2004 whereas that upon which it was decided to hold the performance assessment was dated 19 August 2003. There is some difference between the two printouts albeit most of the difference is small and unlikely to be of present significance. However, it should be noted that entries for “Hearing Type” had added before the words, “Medical Tribunal Hearing (c)” the words “Medical Tribunal Hearing (04)”. The significance of all of these expressions was not explored or the subject of other evidence.

67 What are the consequences of these errors on the part of the Board. As the Board’s power under s86C to have an assessment is conditioned on the matters to which that section refers, the use by the Board of a test which does not comply with the section means that there was no valid requirement for the Plaintiff to undergo an assessment. Adapting the words of s3(7) of Schedule 3A of the Medical Practice Act, he had a reasonable excuse for failing or refusing to take part.

68 Dr Roehrich has also submitted that what he was provided with did not comply with the requirement for “details”, providing dictionary definitions of the term, including:-

“The treatment of a matter item by item; attention to particulars; small of minor items or events collectively;

A meticulous account or description of particulars.”

69 However, what detail is required in any situation is calculated to be determined by context. In the circumstances here, the details required were such as would apprise the Plaintiff of the matters which those performing the assessment could be expected to address. I am satisfied that, although belatedly, Dr Roehrich was provided with all the details to which he was entitled.

70 I do not take the same view of the consequence of delay in providing the information that s86H requires. To my mind the section is directory and does not go to the validity of the Board’s, necessarily earlier, decision under section 86C. There may well be circumstances where continued non-compliance with the requirement to provide the information would provide a “reasonable excuse” for a failure or refusal by a registered medical practitioner to take part in or continue with an assessment but it is impossible to think that that would be so where, although notified late, the practitioner had adequate time within which to appreciate the significance of information given belatedly and to be prepared to deal with any issues so thrown up.

71 However, it is the decision of the Board on 21 September this year to suspend the Plaintiff from practice which is the subject of the order primarily sought in these proceedings and not the Board’s decision to have an assessment conducted. But before going to that decision, it is appropriate to consider the nature of proceedings in this Court. They fall within the terms of s69 of the Supreme Court Act and are not an appeal from the decision of the Board. That is something which, if it occurs, the Act provides is to be dealt with by the Medical Tribunal. This Court has no power to interfere with or quash the decision of the Board merely because the Court may consider it to have been wrong. So far as is relevant for present purposes, the Court’s entitlement to interfere depends upon it being shown that the Board, or the Board as it was constituted, had no power or jurisdiction to make the decision which it did, or that there was a denial of natural justice, or that there is an error of law on the face of the record of the Board’s decision.

72 Given the terms of the legislation, there is no doubt that the Board, if properly constituted, had the power to make the order it did. So far as the constitution of the Board is concerned, s136 of the Act provides:-

“The Board may delegate to a person the exercise of any of its functions, other than this power of delegation”.

73 As has been said, when they determined to suspend the Plaintiff, Professor Glover and Dr Kendrick were purporting to act as delegates of the Board. Section 140 provides that:

“In any legal proceedings, proof is not required (until evidence is given to the contrary) of:

(a) the constitution of the Board, or

(b) any resolution of the Board, or

(c) the appointment of, or the holding of office by, any member of the Board, or

(d) the presence of a quorum of the Board.

74 There were but 4 items of evidence before me which bore on the topic of the validity of Professor Glover and Dr Kendrick acting. The first item of evidence was a letter of 2 September 2004 to Dr Roehrich on the letterhead of the Board and signed by Mr Tadros, the Board’s Legal Officer, advising that the Board had determined to hold an Inquiry under s66 and the Board’s delegated were Professor Glover and Dr Kendrick.

75 The record of the proceedings before the Board on 21 September 2004 as “noted that Professor Walter Glover and Dr Jennifer Kendrick” were the Board’s delegates (thereby suggesting the proposition was at least asserted), shows that the Plaintiff sought information concerning the status of these persons and the provisions of s136 of the Act were discussed. Thirdly, Dr Roehrich’s affidavit records that he asked whether they had the instrument of delegation that empowered them, they looked uncertain, the Board’s legal officer said that it was alright to proceed and none of the legal officer, Professor Glover and Dr Kendrick showed the Plaintiff any evidence of such delegation.

76 The fourth item of evidence in this regard consisted of a letter of 24 September 2004 from the Board to the Plaintiff enclosing:-

(i) a copy of part of the Minutes of the Board of 6 August 2003 “where the power of delegation was amended to its current form” and

(ii) “ a copy of Annexure “A” which documents the Board’s Powers of Delegation and in particular Part 3.4”.

77 The unobliterated portion of the Minutes was in terms:-

9.6 Delegations [96/270]

The meeting considered the proposal that the delegation regarded Section 66 be amended because of the difficulty in obtaining two Board members who had not been previously involved in some ongoing matters. Accordingly it was resolved that Delegation 3.4 be rescinded and replaced by the following:

3.4 To the Conduct Committee or in the event that exercise of power is required between meetings of the Conduct Committee, two persons approved by the Registrar, its power to act under Part 4, Division 5 of the Medical Practice Act.”

78 Paragraph 3.4 of Annexure “A”, which I infer was the previous delegation, was in terms:-

“3.4 To the Conduct Committee or in the event that exercise of power is required between meetings of the Conduct Committee, to a Board member and one other person (who shall be a registered medical practitioner) its power to act under Part 4, Division 5 of the Medical Practice Act.”

79 The question arises whether, within the terms of s136 there was a proper delegation of the Board’s powers to Professor Glover and Dr Kendrick. Does delegation to “two persons approved by the Registrar” - and who may or may not be known to the Board - amount to delegation “to a person” within that statutory provision?

80 I was referred to no authority on the question and I have found none. Although my mind has vacillated on the issue, ultimately I have reached the view that the delegation was valid and that the reference “to a person” does not require that the Board itself specify the person (or persons) to whom the delegation is made.

81 There is no evidence of a denial of natural justice. In the Statement of Claim, Dr Roehrich indicates that he received notice of the inquiry on 7 September and there is no suggestion that was not adequate notice. He was present. The record of the proceedings indicates that he was given reasonable, indeed more than reasonable, opportunity to deal with the matters which ultimately led the Board, in the form of Professor Glover and Dr Kendrick, to make the decision it did.

82 A repetitive theme in Dr Roehrich’s submissions was the assertion that there was bad faith or bias on the part of the Board or its members. It is unnecessary for me to detail the matters relied on by Dr Roehrich in this regard. It sufficient to say that there is nothing which comes even close to evidence of either bad faith or bias. Mere error, insofar as there be any, certainly, as a matter of rational inference, does not constitute such evidence.

83 Is there error of law on the face of the record? The record of the inquiry which was before me was described by the Registrar of the Board as “a copy of the decision made and the reasons for that decision pursuant to section 66 of the Medical Practice Act”. The document extends to 7 pages and seems to be a summary of what led to the proceedings, of the proceedings themselves including reference to topics discussed and a summary of what was said and, at least to some extent, by whom. I regard the whole document as the “record” for present purposes. It is to be inferred that to the extent to which the document records matters of prior history that history was before and considered by those holding the inquiry.

84 Earlier, the report indicated that Professor Glover and Dr Kendrick had before them a number of documents including those to which I have referred, that during the inquiry the Plaintiff’s attention was drawn to the provisions of the Medical Practice Act to the effect that a failure to participate in an assessment exercise was evidence that the professional performance of the practitioner was unsatisfactory. The document recorded that Dr Roehrich “raised with the Board his concerns with the procedures leading to the decision to have his professional performance assessed” and later “that it was also clear that the Board’s view was that the Board did not accept the reasons given by Dr Roehrich for not participating in the performance assessment”. It is recorded that “Professor Glover noted that whilst it was Dr Roehrich’s opinion that the Board had not provided the required information to him, it was the Board’s view it had in fact replied to his concerns”. Dr Roehrich was asked whether he was prepared to participate fully in a performance assessment and if not, what reasons other than those previously notified he had for not wishing to do so. It is recorded that “Dr Roehrich replied that he would only agree if his questions (those he had set out in his notices of demand) were answered by the Board”. It appears that the Plaintiff was asked more than once whether he would now agree to participate in a performance assessment and that he maintained his refusal to do so.

85 The report of proceedings of the inquiry includes the following passages. (The numbering has been included for convenience. Although in order, the numbered passages are not consecutive.):-

(i) “(Professor Glover) noted that it was the Board’s view that if an individual fails or refuses to take part in or continue with an assessment exercise then it may be appropriate for the Board to suspend or place conditions on the Practitioner’s registration.”

(ii) Professor Glover “explained on a number of occasions that the issue to be considered … was whether or not it was necessary to suspend or place conditions of Dr Roehrich’s registration for the purpose of protecting the life or physical of mental health of any person”.

(iii) “It was explained to Dr Roehrich by the delegates that his refusal would be considered as a refusal to participate in the performance assessment and the potential consequences of such a refusal were outlined to him. Dr Roehrich was then asked if he or his accompanying person, Ms Eve Hillary, would like to take time in order to consider their position or consider any comments they might wish to make.

The Inquiry adjourned to enable Dr Roehrich to consider the matter.”

(iv) “One of the mechanisms, as set out by Parliament in the Act, is the Performance Program. It allows the Board to have the professional performance of a medical practitioner assessed. Failure or refusal to take part in assessment is evidence that the professional performance of the registered practitioner is unsatisfactory.”

(v) Dr Roehrich’s failure or refusal to be assessed by the performance assessors on 30 July 2004 is a matter of concern in the light of his complaint history and the clinical nature of the most recent complaint. When asked at this Inquiry, he continued to indicate that he was not prepared to allow the Board to assess his professional performance.

On this basis, the delegates have considered that action is necessary in order to protect the life or the physical or mental health of potential patients. Having considered that action is necessary, the delegates turned to what action should be taken, noting that they could either suspend or place conditions on Dr Roehrich’s practice. The delegates considered imposing conditions on Dr Roehrich’s practice. The appropriate condition may have been that Dr Roehrich undertake performance assessment. The delegates could not be confident that he would comply with this condition, given his refusal to be assessed on 30 July 2004. Dr Roehrich was given a number of opportunities to reconsider his position. Given his refusal to be assessed by the Board and his indication that this remains his position and the clinical nature of the recent complaint and his complaint history and given the Board’s primary obligation to protect the public, the delegates considered it appropriate to suspend Dr Roehrich for 8 weeks.

DETERMINATION

On their return the delegates advised Dr Roehrich that they had determined to suspend him for a period of eight weeks pursuant to section 66(1) of the Medical Practice Act 1992 for the purpose of protecting the life or the physical and mental health of any person.

The suspension would become effective from the close of business, Friday 24 September 2004.”

86 The context indicates that the passages numbered (iv) and (v) were statements or summaries of statements by Professor Glover or Dr Kendrick:-

87 Taken literally the statement in the last sentence of the passage numbered (iv) is wrong because it does not include the qualification “without reasonable excuse”. However, earlier there had been reference to the relevant provision in the Medical Practice Act and to that qualification and, as I have said, Dr Roehrich was asked if there were any further reasons for not participating in the assessment. In these circumstances, I would not infer from the omission of the qualification in the passage just quoted that Professor Glover and Dr Kendrick ignored it.

88 Despite the passage I have numbered (ii) and the opening sentence of the passage I have numbered (v), there is much in the passages I have quoted and in the concentration elsewhere in the report on the topic of participation in a performance assessment to suggest that the delegates considered that a failure or certainly steadfast refusal to participate in such an assessment itself led to the conclusion that suspension or conditions were necessary to give the protection to life or health to which s66 refers. Thus the passage numbered (i) reads as if failure or refusal to participate in an assessment itself justifies or at least may justify suspension or the imposition of conditions. It seems to me an inevitable inference from the tenor of the whole report that had Dr Roehrich agreed during the course of the inquiry to participate in an assessment, he would not have been, at least at that stage, suspended from practice.

89 In this connection it is also relevant to consider what was involved in the Board’s decision to require a Performance Assessment. So far as is presently relevant, s86D provides that the Board must not have a Performance Assessment if a matter giving rise to a proposed assessment, “raises a significant issue of public health or safety”. Thus the Board’s conclusion must have been that none of the complaints, including the recent one by Mrs N, (even) raised any significant issue of public health or safety. It is a large step then to conclude that at the time of the inquiry suspension was “necessary for the purpose of protecting the life or physical and mental health of any person”.

90 Of course, account has to be taken of s3(7) of Schedule 3A. But the effect of that clause when its requirements are established is to provide evidence of no more than that the professional performance of the medical practitioner is unsatisfactory. Sections 86C and 86D recognise that there is an appreciable difference between a practitioner’s performance being unsatisfactory and such that it raises a significant issue of public health or safety. Thus I do not see in s3(7) any explanation for the difference in stance taken on the 2 occasions.

91 Of course, the times at which these conclusions were reached differed and in the inquiry the delegates of the Board were not confined to the material which had been before the Board when the decision to require a Performance Assessment was made. However, the record of the inquiry indicates that the only intermediate events to which the Board had regard was Dr Roehrich’s refusal to participate in the assessment and his continuation in that stance.

92 It must be acknowledged that the inquiry also had before it the Plaintiff’s correspondence much of which was, as I have said, at least illogical, if not irrational in its terms. However, apart from recording that it was before the inquiry, the report makes no reference to it and it seems clear that the Board did not consider the correspondence as throwing light on the issues of Dr Roehrich’s fitness or of any need for protection of anyone.

93 I see no basis for concluding that those constituting the Board at the inquiry were obliged to take the same view of the complaints or other material that had been before the Board when the Performance Assessment was decided upon. Given the nature of the jurisdiction, no issue of estoppel or res judicata arises. However the magnitude of the difference in the seriousness with which the matters before the Board on the 2 occasions were regarded does tend to indicate that it was the refusal to participate in the assessment which made the difference.

94 It seems to me that there is inconsistency between the stances taken by the Board at the time an assessment was decided upon and at the time Dr Roehrich was suspended and I do not see how the mere failure to undergo an assessment can justify the difference. However, to conclude that there was inconsistency says nothing about which conclusion was correct. Furthermore, that inconsistency lies in a matter of judgement or characterisation of the material being considered. It is not and does not demonstrate an error of law and does not justify this Court interfering in circumstances where the proceedings are not an appeal but application for prerogative relief under s69 of the Supreme Court Act.

95 There is nothing else in the report of the s66 inquiry which leads to the conclusion that there was any error of law in the course of it. In these circumstances, the application to quash the decision of the Board during that Inquiry must be dismissed. What impact that conclusion has on the totality of the Plaintiff’s proceedings was not the subject of debate and accordingly I should make no wider order at this stage. However, given that Dr Roehrich is not a lawyer, it may be of assistance if I observe that, while the relief sought in the Statement of Claim and Notice of Motion is not confined to the decision of the Board in the s66 inquiry, a considerable portion of that relief would appear to depend on Dr Roehrich’s successfully challenging that decision.

96 It is also appropriate that I add this. During the course of the history I have canvassed, there has been error on the part of both Dr Roehrich and the Board. He was not entitled to the information which he sought as a condition of participating in the assessment. However, in that the Board adopted the wrong test in deciding that there should be an assessment, Dr Roehrich had a reasonable excuse for not participating in it, even though he was not aware of the particular excuse at the time. That refusal to participate clearly influenced the later decision to suspend him, a decision which seems at odds with the Board’s view of his conduct at the time the Assessment was decided upon. That suspension was for 8 weeks (although it may now have been extended under s67 of the Act). Although this is not a matter for the Court, it may well be appropriate he be given, and he accept, a further opportunity to participate in a Performance Assessment.

97 I have set out in the opening paragraphs of these Reasons the principal orders sought by the Plaintiff. He is entitled to an order that the decision of the Board made on or about 17 September 2003 that the professional performance of the Plaintiff be assessed be quashed but his claim that the decision of the Board made on or about 21 September to suspend the Plaintiff from practising medicine be quashed should be dismissed.

98 The latter conclusion means that many of the other orders sought by the Plaintiff should not be made. However, there was no debate about those and, it is appropriate that, apart from the making of orders to the effect of those referred to in the immediately preceding paragraph, the proceedings should stand over for a limited period.

99

Accordingly, my orders are:-

(i) That the decision of the Board made on or about 17 September 2004 that the professional performance of the Plaintiff be assessed be quashed.

(ii) Dismiss the Plaintiff’s claim that the decision of the Board made on or about 21 September to suspend the Plaintiff from practising medicine be quashed.

(iii) Stand the proceedings over until 27 January 2005 at 9.30 am before me.

**********

Last Modified: 12/23/2004

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Citations

Roehrich v NSW Medical Board [2004] NSWSC 1264

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CITATION:	ROEHRICH v NSW MEDICAL BOARD [2004] NSWSC 1264
HEARING DATE(S):	27-29 October 2004 18 November 2004
JUDGMENT DATE:	23 December 2004
JUDGMENT OF:	Hulme J at 1
DECISION:	See paragraph 99
PARTIES :	Dr Eckard Roehrich NSW Medical Board
FILE NUMBER(S):	SC 30090/04
COUNSEL:	In person Ms G Furness
SOLICITORS:	In person AE Dix