Sansom v Medical Board of Australia
[2014] TASSC 67
•18 December 2014
[2014] TASSC 67
COURT: SUPREME COURT OF TASMANIA
CITATION: Sansom v Medical Board of Australia [2014] TASSC 67
PARTIES: SANSOM, Gaye Marguerite
v
MEDICAL BOARD OF AUSTRALIA
FILE NO: 183/2014
DELIVERED ON: 18 December 2014
DELIVERED AT: Hobart
HEARING DATE: 1 September 2014
JUDGMENT OF: Blow CJ
CATCHWORDS:
Professions and Trades – Health care professionals – Medical practitioners – Disciplinary proceedings – Proceedings before boards, tribunals etc – Health Practitioner Regulation National Law – Decision of National Board to take no further action – Duties of National Board.
Health Practitioner Regulation National Law, s 151(1)(a).
Kioa v West (1985) 159 CLR 550, referred to.
Aust Dig Professions and Trades [1065]
REPRESENTATION:
Counsel:
Applicant: In person
Respondent: P L Jackson
Solicitors:
Applicant: In person
Respondent: John Shears
Judgment Number: [2014] TASSC 67
Number of paragraphs: 27
Serial No 67/2014
File No 183/2014
GAYE MARGUERITE SANSOM v MEDICAL BOARD OF AUSTRALIA
REASONS FOR JUDGMENT BLOW CJ
18 December 2014
This is an application under the Judicial Review Act 2000. The applicant, Gaye Sansom, is seeking the review of a decision made by a committee of the Tasmanian Board of the respondent, the Medical Board of Australia. These proceedings concern a number of medical practitioners who treated a man named Antonio Zorzi. He died on 24 September 2007. At that time he was a patient in the Geriatric Evaluation and Management ("GEM") Unit of the Royal Hobart Hospital. On 14 December 2013 the applicant wrote to the State manager of the Australian Health Practitioner Regulation Agency ("AHPRA") complaining about seven medical practitioners who had treated Mr Zorzi, whom she described as her fiancé. Her letter was treated as a notification pursuant to s 144 of the Health Practitioner Regulation National Law ("the National Law"). AHPRA referred it to the notifications committee of the Tasmanian Board of the respondent, ("the committee"). On 7 February 2014 the committee, exercising power delegated by the Tasmanian Board, decided to take no further action in relation to the notification. That was a decision pursuant to s 151(1) of the National Law. This is an application for judicial review of that decision.
The National Law was adopted as a law of Tasmania by the Health Practitioner Regulation National Law (Tasmania) Act 2010, s 4(a). It is set out in a schedule to the Health Practitioner Regulation National Law Act 2009 (Qld). It evidently delegated its functions in relation to notifications concerning medical practitioners to the committee pursuant to s 37(1)(c).
In her originating application, the applicant specified six grounds upon which judicial review was sought. Those grounds read as follows:
"1 that a breach of the rules of natural justice happened relating to the making of the decision of the Medical Board not to inquire into significant complaints that I lodged with APHRA [sic];
2 that procedures that were required by law to be observed relating to the making of the decision were not observed;
3 that the chair-person of the Medical Board who purported to make the decision – about complaints that were lodged with APHRA [sic] – did not have jurisdiction to make the decision when no inquiry had occurred;
4 that the decision was induced by fraud;
5 that there was no evidence or other material to justify the decision that my complaint was limited to conduct on the part of Dr Alison Cleary. In fact the complaint was fundamentally about the conduct of other identified health service providers who engaged in gross, professional misconduct; and
6 that the making of the decision was otherwise contrary to law."
At the hearing of the application, the applicant sought to amend her originating application to substitute five differently worded grounds of review. That application was opposed. I decided to hear the originating application and the amendment application together. The proposed amended grounds of appeal read as follows:
"1 that – under Section 18, (1) (2) (a), a breach of the rules of natural justice happened relating to the conduct relating to the Australian Medical Board's decision on 13 February 2014. The conduct relates to the Board's unreasonable refusal to discover an alleged paper trail and other available evidence affirming the allegations made about systematic, clandestine, professional, injurious mis-conduct. Hence, the conduct denied me an adequate opportunity to present my case where my interests and right was adversely affected by the decision-making Board;
2 that – under Section (b), procedures that are required by law to be observed relating to the conduct (related to the decision-making Board), were not observed. For instance, the Board was required by law to base its administrative decision upon logical proof or evidence material subportive [sic] of its decision that my allegation would be investigated on the basis of lacking substance. But there is no evidence from which the Board could reasonably be satisfied that this was established. On the contrary: material and other evidence attesting the allegations was available for the Board's consideration but irrisponsibly [sic] and recklessly it refused to discover it. Further, the requirement by law that a decision-maker must act without bias in all procedures connected with decision-making – was not observed in the conduct of the Board;
3 that – under Section (e), the Board's statutory and fundermental [sic] duty to protect the public – rendered the Board's conduct in respect of unreasonably having refused to refer my grave complaints for investigation – a reckless and improper exercise of the power conferred by the enactment under which the Board's decision was made;
4 that – under Section (f), an error of law has been committed in the course of conduct related to the Board's decision in respect of the complaint, stated above under Section (b), and in respect of the Board's conduct related to making of its decision while having ignored the relevant fact that the complaint was about injuring mis-conduct on the part of 'seven' health service providers – not just Dr A Cleary as the Board falsely alleges;
5 that – under Section (a), fraud has taken place in the course of the conduct related to the making of the Board decision. For instance: this is evident by the Board having:
a wilfully misconstrued the nature and subject matter of my allegations put before it
b alleged falsely that just 'one' party I accused of clandestine; systematic; injurious professional mis-conduct;
c used official false instruments to defeat my right to an inquiry and right to accountability for injurious, mis-conduct perpetrated on my fiancé and me; and
d those official false instruments include the Board's false announcement that: the complaint had already been dealt with adequately by another entity. And so, under Section 151 (1) (e) of the National Law Act – no action would be taken regarding the complaint."
The respondent contends that none of the original grounds of review has any merit; that none of the proposed amended grounds of review has any merit; and that the applicant is not entitled to seek judicial review because, for the purposes of the Judicial Review Act, she is not a "person who is aggrieved by" the committee's decision.
The applicant contends that, as the fiancé of a deceased hospital patient, she has a sufficient interest in relation to his medical treatment, or lack thereof, in the period leading up to his death for her to be a person who is aggrieved by the decision not to take any action in relation to her notification to AHPRA. I need not decide that point. For the purposes of this decision I will assume, without deciding the point, that the applicant has the necessary standing to seek judicial review. However, for the reasons which follow, I have decided that none of her grounds, and none of her proposed grounds, can succeed.
The legislative scheme
In order to address the grounds of review, it is necessary to consider the scheme of the National Law in relation to complaints. The relevant aspects of the scheme created by the legislation can be summarised as follows:
· Under s 144(1), disciplinary procedures can be initiated by a "voluntary notification about a registered health practitioner" to AHPRA. Such a notification may be made on various specified grounds that are listed in that subsection. One available ground is "that the practitioner's professional conduct is, or may be, of a lesser standard than that which might reasonably be expected of the practitioner by the public or the practitioner's professional peers": s 144(1)(a). Another is "that the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the practitioner's health profession is, or may be, below the standard reasonably expected": s 144(1)(b).
· Such a notification may be made verbally or in writing, but must "include particulars of the basis on which it is made": s 146.
· Subject to certain exceptions that are not relevant to this case, as soon as practicable after receiving such a notification, AHPRA must refer the notification to the National Board that registered the health practitioner: s 148(1). (The respondent is the relevant National Board.)
· As soon as practicable after receiving a notification about a registered health practitioner, the National Board must give written notice of the notification to the practitioner: s 152(1).
· Within 60 days after receipt of a notification, the National Board must conduct a preliminary assessment: s 149(1). In particular, as part of the preliminary assessment, it must decide "whether or not the notification relates to a matter that is a ground for notification": s 149(1)(b). As I have said, there is a list of grounds for voluntary notification in s 144(1). Other provisions of the Act specify grounds for mandatory notification: ss 140-143.
· Under certain circumstances, a National Board may decide to take no further action in relation to a notification: s 151(1). In particular, a Board may decide to take no further action if it reasonably believes that the notification is "lacking in substance": s 151(1)(a).
· If a National Board decides to take no further action in relation to a notification, it must give written notice of that decision to the notifier: s 151(3). Such a notice must state the reason the Board has decided to take no further action: s 151(4)(b).
· A National Board may investigate a registered health practitioner if it decides it is necessary or appropriate to do so as a result of receiving a notification about the practitioner: s 160(1)(a). If a decision is made to conduct such an investigation, the National Board must, as soon as practicable after making that decision, give the practitioner written notice about the investigation: s 161.
· A National Board has a range of disciplinary powers under s 178(2), including the power to caution a practitioner, the power to impose conditions on a practitioner's registration, and a power to refer a matter to a "health complaints entity" for investigation or other action. If a National Board is proposing to exercise any of those powers, it must first give the practitioner written notice of the proposed action and invite a submission from the practitioner: s 179(1). As soon as practicable after making a decision to exercise any of its powers under s 179(2), a National Board must give written notice of its decision to the practitioner and to the notifier: s 180(1). The notice given to the notifier may only include information available on the National Board's register: s 180(2).
· Under s 178(2)(d), a National Board may refer a matter to another entity "for investigation or other action". In Tasmania, matters may be referred pursuant to that provision to the Health Practitioners Tribunal. That tribunal is established under the Health Practitioners Tribunal Act 2010. By virtue of s 16(4) of that Act, that tribunal is a "responsible tribunal" for the purposes of the National Law. Under s 196(2) of the National Law, it has wide disciplinary powers, including the power to cancel a practitioner's registration: s 196(2)(e). By virtue of s 37(2)(c) of the Health Practitioners Tribunal Act, the tribunal must observe the rules of procedural fairness.
Procedural fairness
As the above summary illustrates, the procedural fairness provisions in the National Law are largely concerned with fairness to the health care professional whose conduct or competence is under consideration, rather than fairness to the person referred to as the "notifier". The health care professional must be notified that the National Board has received a notification about him or her, notified if an investigation is commenced on behalf of the National Board, given an opportunity to make a submission in relation to any action proposed by the National Board, and given written notification of any decision of the National Board: ss 152(1), 161, 179(1), 180(1). By contrast, the notifier is required to be told only a little about the outcome of the proceedings, whether that outcome is a decision to take no action or some other decision: ss 151(3), 180(1), (2).
This is consistent with the focus of the legislation being on the protection of the public, not the redress of private grievances. The objective of the National Law is to establish a national registration and accreditation scheme: s 3(1). The objectives of that scheme are listed in s 3(2). For present purposes, the relevant objective is that stated in s 3(2)(a), which reads:
"to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered".
The guiding principles of the national registration and accreditation scheme are listed in s 3(3). Relevantly, s 3(3)(c) provides that one of those guiding principles is that:
"restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality."
The choice of language in the National Law in relation to complaints is significant. When a member of the public complains to AHPRA about a health professional, his or her communication is called a "notification", not a complaint, and that individual is referred to as a "notifier", not a complainant.
It is true that, as a general rule, administrative decision-makers have a duty to afford procedural fairness in the making of decisions that affect rights, interests and legitimate expectations: Kioa v West (1985) 159 CLR 550. However the duty of procedural fairness is subject to "the clear manifestation of a contrary statutory intention": Kioa v West, per Mason J (as he then was) at 584. Having regard to the legislative provisions that I have referred to, it is clear that a notifier is not to be treated as having a status similar to that of a litigant, and that neither AHPRA nor a National Board owes a notifier any common law duty of procedural fairness.
After the applicant wrote to AHPRA complaining about the practitioners who had treated Mr Zorzi, it appears that an officer of AHPRA wrote to her twice – first acknowledging her letter, and then on 13 February 2014 advising her that the Board had decided to take no further action. However the Board did not have any procedural fairness obligations towards her that required it to conduct an investigation, make written material available to her, or invite further information or submissions from her. It did not breach any duty relating to procedural fairness.
Notification of practitioners
As I have said, the applicant's letter to AHPRA complained about seven medical practitioners. The applicant named them, and accused them of "gross, professional misconduct and harm". However AHPRA notified only one of the seven doctors of the "notification" in accordance with s 152(1). The applicant is aggrieved by that. She contends that all seven should have received s 152(1) notifications.
I disagree. Section 146(2) requires a notification to "include particulars of the basis on which it is made". The applicant's letter named seven doctors, and listed a number of grievances, but contained specific allegations only in relation to one of the seven doctors. In my view it follows that s 152(1) did not require notice to be given to any of the other doctors.
If I am wrong about that, it does not follow that the applicant should succeed. A failure to notify any of the other six doctors under s 152(1) does not warrant the making of any order under the Judicial Review Act if the decision to take no further action is unimpeachable. For the reasons that appear below, I am satisfied that that decision is unimpeachable.
The reasons for the decision
On 13 February 2014 an officer of AHPRA wrote to the applicant notifying her of the decision to take no further action, as required by s 151(3). He wrote this:
"On 7 February 2014, the Medical Board of Australia (the Board) decided to take no further action under section 151(1) (a)-(e) of the Health Practitioner Regulation National Law (the National Law).
The Board decided this because:
1 There is insufficient evidence to determine an appropriate action at preliminary assessment.
2 Dr Cleary refutes the allegations that Mr Zorzi's care was inadequate and that hospital records were falsified. Mr Zorzi was under the care of a team of specialists and Mr Zorzi had multiple co-morbidities.
3 The patient notes for Mr Zorzi support Dr Cleary's response and the care provided [by] Mr Zorzi's treating team of specialists."
It is unfortunate that that officer referred to "section 151(1) (a)-(e)" because it seems quite clear that the Board did not rely on each of pars (a) to (e) of s 151(1). That subsection reads as follows:
"(1)A National Board may decide to take no further action in relation to a referred matter if—
(a) the Board reasonably believes the referred matter is frivolous, vexatious, misconceived or lacking in substance; or
(b) given the amount of time that has elapsed since the matter the subject of the referred matter occurred, it is not practicable for the Board to investigate or otherwise deal with the referred matter; or
(c) the person to whom the referred matter relates has not been, or is no longer, registered by the Board and it is not in the public interest for the Board to investigate or otherwise deal with the referred matter; or
(d) the subject matter of the referred matter has already been dealt with adequately by the Board; or
(e) the subject matter of the referred matter is being dealt with, or has already been dealt with, adequately by another entity."
Unfortunately the applicant interpreted the letter of 13 February 2014 as including an assertion that s 151(1)(e) applied – that is, that the subject-matter of her original letter was being dealt with, or had already been dealt with, adequately by another entity. That of course was not the situation. But it was not what the author of the letter was trying to say. I am satisfied that he was simply trying to say that the Board had decided in accordance with s 151(1) to take no further action because of the three points listed in the letter.
The material before me includes the relevant material that was provided to the committee for its meeting on 7 February 2014, and an extract apparently comprising the relevant portion of the minutes of that meeting. It is clear from that material, and from the contents of the letter of 13 February, that the committee believed that the applicant's allegations were, in the words of s 151(1)(a), "lacking in substance". It is a pity that the letter of 13 February did not say that.
The inadequate investigation issue
The National Law does not impose any requirement as to the investigation of a matter as a prerequisite to a decision to take no further action. The only relevant requirement, when s 151(1)(a) is invoked, is that the Board must have a belief that is reasonable. As a matter of practicality, some investigative steps may need to be taken before such a belief can be formed. However it is clear that a decision under s 151(1) to take no further action may be made without the initiation of a formal investigation in accordance with s 160(1). Such a decision may be taken upon the conclusion of a s 149(1) preliminary assessment.
It may be that the committee took no investigative steps beyond considering the material submitted by the applicant and the one doctor whom it notified in relation to the matter. However it had no duty to take any additional investigative steps before deciding under s 151(1) to take no further action. It is clear from the material before me that it was the committee that made the impugned decision, not an individual, and that it had the jurisdiction to do so, exercising power delegated by the Tasmanian Board, without taking any additional investigative steps.
Reasonableness
The doctor who was notified of this matter under s 152(1) is a geriatrician. She was not obliged to respond to that notification, but she did. She wrote a letter containing the following:
"Ms Sansom has alleged that I have falsified the death certificate for Mr Zorzi. I refute this statement, and affirm that I believe Mr Zorzi died as a result of cardiac failure, likely precipitated by an acute on [sic] chronic event. He was high risk for ischemic cardiac disease due to his co-morbid hypertension and smoking history. He also had chronic renal impairment, chronic leg ulcers and poor mobility.
He was medically stable when transferred to the GEM unit, and was managed by the multidisciplinary team addressing his many needs. He had chronic leg ulcers, congestive heart and renal failure.
He deteriorated quickly over the weekend, and died in the early hours of Monday morning. Invasive tests were not conducted, nor was an autopsy requested, and so I cannot state with scientific certainty the exact cause of death."
Having regard to the contents of that letter, I am satisfied that it was reasonably open to the committee to form a belief that the applicant's allegations were lacking in substance.
A decision can be quashed for unreasonableness if it is "so unreasonable that no reasonable authority could ever have come to it": Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 at 230. Having regard to the material that was before the committee, I am not satisfied that its decision was one that no reasonable committee could ever have come to.
Bias and Fraud
There is no evidence of fraud or bias in this case. The applicant is so unhappy with the decision that she seeks to impugn that she has inferred that it resulted from bias and fraud. However there is no evidence of bias or fraud, and there is no reasonable basis for inferring that anyone was biased or that a fraud occurred.
Conclusion
The comments above cover every aspect of the applicant's actual and proposed grounds of review. None of them have any merit. The application to amend the grounds of review and the originating application are both therefore dismissed.
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