S v New South Wales Medical Board

[2010] NSWSC 663

CITATION:	S v New South Wales Medical Board [2010] NSWSC 663
HEARING DATE(S):	11 June 2010
JUDGMENT DATE :	15 June 2010
JUDGMENT OF:	Price J at 1
DECISION:	1. The summons is dismissed. 2. The plaintiff is to pay the costs of the first defendant.
CATCHWORDS:	Administrative law - Professional Standards Committee - whether reasonable apprehension of bias
LEGISLATION CITED:	Medical Practice Act 1992 s 36, s 61, s168, s 171, s 179(1)
CATEGORY:	Principal judgment
CASES CITED:	Re Finance Sector Union of Australia; ex parte Illaton Pty Ltd (1992) 107 ALR 581 Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504
PARTIES:	S New South Wales Medical Board
FILE NUMBER(S):	SC 2010/144664
COUNSEL:	Ms P Horvath - Plaintiff Ms K Richardson - First Defendant
SOLICITORS:	Holman Webb Lawyers (Plaintiff)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

PRICE J

15 June 2010

2010/144664 S v New South Wales Medical Board

JUDGMENT

1 His Honour: These proceedings concern an allegation of a reasonable apprehension of bias on the part of Dr Michael Lowy who is a member of a Professional Standards Committee (the Committee) which was constituted by the New South Wales Medical Board (the Board) under s 168 Medical Practice Act 1992, to hear a complaint against Dr S. As the hearing is fixed to commence on 17 June 2010, Dr S, the plaintiff, has urgently sought an order restraining the members of the Committee from further considering the complaint. He also seeks an order directing the Board to constitute a new Professional Standards Committee which does not include Dr Lowy as a member to hear the complaint.

2 It is convenient to begin with the background to the complaint against Dr S.

3 Dr S, a medical practitioner, was in February 2008 employed by the Advanced Medical Institute (AMI). On 19 February 2008, Dr S undertook a consultation by telephone with patient "A" relating to "A's" erectile dysfunction. It seems Dr S prescribed an order for 'APM Nasal Spray' for "A". One of the active ingredients contained in the nasal spray is apomorphine.

4 "A" lodged a complaint on 29 February 2008 with the Health Care Complaints Commission (the HCCC). The complaint was referred to the Board and a decision was subsequently taken to refer the complaint to a Professional Standards Committee Inquiry.

5 By letter dated 22 February 2010, the Board notified Dr S that a complaint concerning "his practice of medicine" had been referred to a Professional Standards Committee Inquiry and provided details of the date for hearing and venue. The Board informed Dr S that the members of the Committee are: Mr Robert Kelly (chairperson) (lay member); Dr Michael Lowy (physician); Dr Esther Kok (GP), and Dr Katherine Berglund, PhD (lay member).

6 The members of the Committee are the second to fifth defendants in the present proceedings. A submitting appearance has been filed for each of them. Dr S does not contend that considerations of a reasonable apprehension of bias arise so far as any members of the Committee other than Dr Lowy are concerned.

7 A copy of the complaint was enclosed in the letter. The HCCC complains, in short, that Dr S has been guilty of unsatisfactory professional conduct within the meaning of s 36 Medical Practice Act. Particulars of the complaint are as follows:

“At all relevant times the practitioner practised as a medical practitioner employed by the Advanced Medical Institute (a company which registered office is in Sydney, NSW 2000). At approximately 3.45pm on 19 February 2008 the practitioner undertook a consultation with Patient A relating to Patient A's erectile dysfunction by telephone.
1. During the course of the telephone consultation the
practitioner recommended for Patient A a treatment programme which:


(a) lasted for approximately 18 months;

(b) cost approximately $3,995.

2. The practitioner failed to undertake a physical examination of Patient A prior to recommending the treatment programme;

3. The practitioner failed to discuss with Patient A other
treatment options;

4. The practitioner failed to recommend or otherwise
arrange any follow-up or review of Patient A to assess the efficacy and/or response to the recommended treatment programme, including the development of any side effects;

5. The practitioner failed to make or keep an adequate or
sufficient record of his consultation with Patient A contrary to the requirements of the Medical Practice Regulation 2003."

8 At a Directions Hearing on 13 May 2010, Jan Willem Van de Poll, the plaintiff's solicitor, raised with the Chairperson of the Committee the issue of apprehended bias on the part of Dr Lowy. The Chairperson directed that the grounds of the complaint were to be identified. In a letter dated 13 May 2010, Mr Van de Poll identified two grounds upon which the allegation was founded:

(1) Dr Lowy was a co-author of the publication Too Fast? Learn to
Last Longer - A Guide to Premature Ejaculation . Page 63 of the

publication was enclosed in which the following appears:

“ Some men respond to advertisements from commercial organisations for treatment for PE. We recommend a man with PE only seeks treatment advice in a face to face consultation. This should be initially with a general practitioner who may provide treatment or referral to a health professional or medical practitioner who has experience in the field of sexual medicine. Prescribed medication should only be used that is approved by the Australian Government Regulatory Authority, the Therapeutic Goods Administration."

It was submitted that the reference to "advertisements from commercial organisations" was to AMI, Dr S's employer, at the relevant time. Moreover, the contention was that it was apparent from the quoted passage that Dr Lowy "had a pre-formed view about one of the central issues in these proceedings, namely, whether or not a consultation via telephone is appropriate for patients such as the complainant".

9 Dr Lowy is the Chairman of Impotence Australia. Impotence Australia was sponsored by GlaxoSmithKline, Pfizer, Lilly and Bayer which were said to be "suppliers of alternative medication to those offered by Advanced Medical Institute for the treatment of erectile dysfunction and premature ejaculation.”

10 In a letter dated 20 May 2010 from Mr Harvey, the Board's legal officer, Dr S was informed that Dr Lowy had "carefully considered the submissions made and [had] informed the Board that he sees no reason to step aside".

11 The assertions of apprehended bias which were raised by the plaintiff's solicitor with the Committee are relied upon in the present application for injunctive relief. Ms Horvath, counsel for the plaintiff, referred in further support of the complaint of pre-judgment to a passage at p7 in the publication Treat ED. A Consumer Guide to Understanding and Treating Erectile Dysfunction which is as follows:

“It is very important that a qualified doctor is involved with your diagnosis of treatment, because they will be able to undertake a full medical assessment and explore health factors that may contribute to ED”.

12 Dr Lowy was the author of this publication with two others. The publication appears on the Impotence Australia website. Ms Horvath contended that it was clear from the co-authored publications that Dr Lowy has a view that a face-to-face interview with a full medical examination is necessary before treatment for erectile dysfunction is prescribed. Ms Horvath argued that a fair-minded observer might reasonably apprehend that Dr Lowy might not bring an impartial mind to the complaint by the HCCC that Dr S had failed to physically examine "A" prior to recommending the treatment programme.

13 A third ground for the assertion of apprehended bias was raised. Mr Van de Poll in an affidavit sworn 9 June 2010 annexed a transcript of an interview between Matthew McKeon and Dr Lowy on Radio 1A. Mr Van de Poll states at par 29:

“…When Dr Lowy is asked about treatments for erectile dysfunction, he only mentions medications manufactured by the sponsors of Impotence Australia”.

14 Mr Van de Poll reviewed Treat ED. He states at par 30:

“…That article does not mention medications (tablet or injection) other than medication (sic) manufactured by the sponsors of Impotence of Australia."

15 It was argued for Dr S that the failure by Dr Lowy to mention medications manufactured otherwise than by the sponsors of Impotence Australia provides another indication to a fair-minded observer of an apprehension of bias. Ms Horvath also pointed to Dr Lowy's membership of the Pfizer Sildenafil National Advisory Board which appears in his curriculum vitae. Ms Horvath did not submit that Dr Lowy's affiliation with Impotence Australia created a conflict of interest.

16 In answer to the first ground of assertion of pre-judgment, Ms Richardson, counsel for the Board, pointed out that the co-authored publication Too Fast? consisted of 68 pages and the publication contained a myriad of opinions and recommendations on a series of issues relating to dysfunction. She argued that the passage drawn from p 63 could not be read as a reference to AMI. Furthermore, the comment, which was expressed in dispassionate and unemotional language, was only a recommendation as to what a patient should do when seeking treatment advice and not what a doctor should do. Ms Richardson submitted that it could hardly be said that the features of the comment by Dr Lowy evidences a mind that is closed about face-to-face consultations.

17 As to the second and third grounds, Ms Richardson submitted that the claim of apprehension of bias appeared to rest on the contention that Dr Lowy is affiliated with Impotence Australia and that a sub-set of Impotence Australia's sponsors supply impotence medication. However, it had not been articulated how that matter could be said to give rise to a reasonable apprehension of bias. Furthermore, the factual premise of the inference that Dr S appears to seek to draw - that Dr Lowy only recommends medications manufactured by sponsors of Impotence Australia - was not made out. Ms Richardson argued that none of the assertions of a reasonable apprehension of bias had been established and that the relief should not be granted.

18 Before considering the competing arguments, it is necessary to have regard to the statutory scheme within which the Committee operates. Section 168 Medical Practice Act enables the Board to constitute a Committee when a complaint is referred to a Committee. Section 169 provides that a Committee is to consist of two registered medical practitioners, one person who is legally qualified and not a registered medical practitioner (the Chairperson) and one lay person appointed from among a panel of ministerially nominated persons. A decision supported by at least three members of the Committee on any question arising during the inquiry is the decision of the Committee: s 171 Medical Practice Act. The Committee does not have the power to either suspend or deregister a practitioner. If the Committee forms the opinion that the complaint, if substantiated, may provide grounds for the suspension or deregistration of a registered medical practitioner, the Committee must immediately terminate the inquiry and refer the matter to the Medical Tribunal: s 179(1) Medical Practice Act. If it finds the subject matter of the complaint to have been proved, the Committee's powers are confined to any of the matters set out in s 61 Medical Practice Act which include caution or reprimand, the imposition of practising conditions, and the completion of educational courses.

19 It is clear that the complaint against Dr S is to be determined by a Committee consisting of four persons; the Chairperson being legally trained; two members being medically qualified and the fourth member being a layperson. Any decision of the Committee must be supported by at least three members. Dr Lowy will not be the sole decision maker and the case law on judicial decision-making is not a starting point when determining this application: McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504 per Spigelman CJ at [6]. Basten JA in McGovern said at [72]:

“…the general approach required to be applied is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the exercise of the power. As explained by Gleeson CJ and Gummow J (Hayne J agreeing) in Minister for Immigration and Multicultural Affairs v Lia Legeng (2001) 205 CLR 507 at 531 [72]:

‘The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.’"

20 The "open to persuasion" test applies to apprehended bias. In McGovern, Spigelman CJ observed at [23]:

“The ‘open to persuasion’ test is an appropriate formulation for bias by prejudgment, to which the dual ‘might’ test of apprehended bias must be applied; that is, an independent observer might reasonably apprehend that the decision-maker might not be open to persuasion”.

21 In assessing what the hypothetical reaction to the fair-minded observer might be, he or she is attributed with knowledge of the actual circumstances of the case: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70.

22 The complaints made by the HCCC which are central to the dispute in these proceedings are the asserted failure by Dr S to physically examine "A" and to discuss with him other treatment options. These are two of the questions which the Committee is required to decide.

23 There is little in evidence in these proceedings from which a fair-minded observer might reasonably conclude that the reference to "commercial organisations" in the passage quoted from p 63 of Too Fast? was to AMI. I give no weight to the opinion expressed by the plaintiff's solicitor at par 20 of his affidavit. There is nothing, in my opinion, in the language of the passages as quoted from p 63 of Too Fast? and p 7 of Treat ED which might reasonably suggest to a fair-minded observer that Dr Lowy has closed his mind on the issue of face-to-face consultations and physical examinations. The Too Fast? passage is stated in terms of a recommendation to a man seeking treatment whereas the Treat ED passage is intended as a guide to encourage men and their partners to seek advice. Both passages are expressed in benign terms and do not mandate what is required of a medical practitioner.

24 The function of a Committee is to determine the complaint against a medical practitioner for which it has been constituted by the Board. It is hardly surprising that a medically qualified member will be selected because of the expert knowledge he or she has in the particular area of complaint. As was said in: ReFinance Sector Union of Australia; ex parte Illaton Pty Ltd (1992) 107 ALR 581 at 583 per Deane, Toohey and Gaudron JJ:

“…it has long been recognised that in most cases, that familiarity is an advantage rather than a disqualifying factor.”

25 Dr Lowy has extensive experience as a sexual health physician. It would be unusual if he did not have, and had not expressed, general opinions on whether a patient with PE should seek treatment advice in a face-to-face consultation with a medical practitioner, or that qualified doctors should be involved in the diagnosis of ED because they will be able to undertake a full medical assessment. It does not, however, follow that a fair-minded observer might reasonably apprehend that Dr Lowy might not be open to persuasion in his consideration of the matters of complaint against Dr S.

26 The second and third grounds of the plaintiff's complaint are founded on Dr Lowy's association with Impotence Australia, a not-for-profit organisation, of which Dr Lowy is the chairman. It appears that the functions of the organisation include a Help-Line and the provision of information for people with sexual concerns. The organisation conducts research into impotence issues and offers a website which provides, inter alia, information about sexual health issues and a directory of health professionals who specialise in the area of sexual health. Impotence Australia does not provide medical services nor does it sell medications. The plaintiff does not contend that Impotence Australia is a rival organisation to AMI. The plaintiff's concern arises, in the first instance, from GlaxoSmithKline, Pfizer, Lilly and Bayer being amongst the sponsors of Impotence Australia. These corporations manufacture medications which are alternatives to the medications and treatment offered by AMI. The plaintiff's solicitor at par 20 of his affidavit deposes to his belief that "Pfizer Australia which markets the impotence drug Viagra assisted with the founding of Impotence Australia in 2000 and 2001 with two $100,000 grants".

27 The plaintiff's concern is said to be re-enforced by the assertion that in the radio interview and in the article Treat ED, Dr Lowy's mention of medications is confined to those manufactured by the sponsors of Impotence Australia. The inference, it seems, that the plaintiff seeks to draw is that Dr Lowy only recommends medications manufactured by Impotence Australia sponsors. Ms Richardson contended that the factual premise for the inference is not made out and referred to p 36 of the co-authored publication of Too Fast? where the following appears:

“A new SSRI medication due soon for release is dapoxetine (Priligy), which filed for registration in December 2007.”

28 Dr Alison Reid in an affidavit sworn 10 June 2010 at par 5 annexes a printout from the website of the drug manufacturer Janssen-Cilag which indicates that Janssen-Cilag is the manufacturer of the drug Priligy. Janssen-Cilag is not a sponsor of Impotence Australia.

29 Ms Richardson pointed out that in two instances referred to by the plaintiff's solicitor, Dr Lowy had referred to each of the drugs listed in MIMS Online for the treatment of male impotence. MIMS lists drugs available to medical practitioners in Australia which have been subject to the usual trial and development process, many of which have been subsidised under the Pharmaceutical Benefits Scheme (PBS). Dr Reid at par 3 of her affidavit explains that Androderm and Sustanon, which were not mentioned by Dr Lowy, do not constitute frontline treatments for impotence, and DBL Papaverine Hydrochloride, also not mentioned, is not subsidised by the PBS. I was further referred to the Impotence Australia website where mention is made of the testosterone patch "Androderm" which is manufactured by Hospira. Hospira does not sponsor Impotence Australia.

30 Dr Lowy's professional interests are not confined to Impotence Australia and to his membership of the Pfizer Sildenafil National Advisory Board. His associations with medical organisations include being a director of Sydney Men's Clinic, a sexual health physician at the St Vincent's Prostate Cancer Centre, a lecturer at the UNSW School of Psychiatry, a lecturer at the University of Notre Dame and sitting on the Advisory Board of Janssen-Cilag. I am not satisfied, on the balance of probabilities, that Dr Lowy only recommends medications manufactured by sponsors of Impotence Australia.

31 In any event, the plaintiff has not established a logical connection between Dr Lowy's association with Impotence Australia and the assertion of a reasonable apprehension that he might not bring to the resolution of the questions arising before the Committee a fair and unprejudiced mind: see McGovern at [106]. This is not a conflict of interests case. I do not understand how the asserted favouritism by Dr Lowy towards the products of the sponsors of Impotence Australia translates into a reasonable apprehension of pre-judgment.

32 For the foregoing reasons, I conclude that the plaintiff has not established that a fair-minded observer might reasonably apprehend that Dr Lowy might not be open to persuasion and might not bring to the hearing of the complaint a fair and unprejudiced mind. The assertion of a reasonable apprehension of bias is not made out.

Order

1. The summons is dismissed.

2. The plaintiff is to pay the costs of the first defendant.

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