Solomon v Australian Health Practitioner Regulation Agency
[2015] WASC 203
•8 JUNE 2015
SOLOMON -v- AUSTRALIAN HEALTH PRACTITIONER REGULATION AGENCY [2015] WASC 203
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 203 | |
| Case No: | CIV:2519/2014 | 17 FEBRUARY 2015 | |
| Coram: | MITCHELL J | 8/06/15 | |
| 58 | Judgment Part: | 1 of 1 | |
| Result: | Certiorari issued | ||
| A | |||
| PDF Version |
| Parties: | JULIA SOLOMON AUSTRALIAN HEALTH PRACTITIONER REGULATION AGENCY PSYCHOLOGY BOARD OF AUSTRALIA |
Catchwords: | Judicial review Certiorari for nonjurisdictional error of law on face of record Inadequate reasons incorporated into record Judicial review Jurisdictional error Performance and professional standards panel misconceived nature of function it was required to perform Professional regulation Health profession Discipline 'Unsatisfactory professional performance' |
Legislation: | Health Practitioner Regulation National Law (WA) Act 2010 (WA) |
Case References: | Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372 Coffey LPM Pty Ltd v The Contaminated Sites Committee [2014] WASC 504 Coppa v Medical Board of Australia [2014] NTSC 48; (2014) 291 FLR 1 Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 Dekker v Medical Board of Australia [2014] WASCA 216 Hamersley Iron Pty Ltd v James [2015] WASC 10 Kocak v Wingfoot Australia Partners [2012] VSCA 259 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Re a Medical Assessment Panel; Ex parte Hays (Unreported WASC, Library No 980575) Re a Medical Assessment Panel; Ex parte Rusich [2001] WASCA 111 Re Bannan; Ex parte Suleski [2001] WASCA 289 Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 Re Minister for Immigration; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 Re Railway Appeal Board; Ex parte The Western Australian Government Railways Commission [1999] WASCA 63; (1999) 21 WAR 1 Re State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125; (2007) 34 WAR 342 Sakalo v The Medical Board of Western Australia [2002] WASCA 178 Seiffert v Prisoners Review Board [2011] WASCA 148 Wilderness Society of WA Inc v Minister for Environment [2013] WASC 307; (2013) 45 WAR 471 Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 88 ALJR 52 Yoong and Medical Board of Australia [2015] WASAT 6 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Applicant
AND
AUSTRALIAN HEALTH PRACTITIONER REGULATION AGENCY
First Respondent
PSYCHOLOGY BOARD OF AUSTRALIA
Second Respondent
Catchwords:
Judicial review - Certiorari for nonjurisdictional error of law on face of record - Inadequate reasons incorporated into record
Judicial review - Jurisdictional error - Performance and professional standards panel misconceived nature of function it was required to perform
Professional regulation - Health profession - Discipline - 'Unsatisfactory professional performance'
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010 (WA)
Result:
Certiorari issued
Category: A
Representation:
Counsel:
Applicant : In person
First Respondent : Mr T J Hammond
Second Respondent : Mr T J Hammond
Solicitors:
Applicant : In person
First Respondent : Australian Health Practitioner Regulation Agency
Second Respondent : Australian Health Practitioner Regulation Agency
Case(s) referred to in judgment(s):
Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372
Coffey LPM Pty Ltd v The Contaminated Sites Committee [2014] WASC 504
Coppa v Medical Board of Australia [2014] NTSC 48; (2014) 291 FLR 1
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163
Dekker v Medical Board of Australia [2014] WASCA 216
Hamersley Iron Pty Ltd v James [2015] WASC 10
Kocak v Wingfoot Australia Partners [2012] VSCA 259
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Re a Medical Assessment Panel; Ex parte Hays (Unreported WASC, Library No 980575)
Re a Medical Assessment Panel; Ex parte Rusich [2001] WASCA 111
Re Bannan; Ex parte Suleski [2001] WASCA 289
Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501
Re Minister for Immigration; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212
Re Railway Appeal Board; Ex parte The Western Australian Government Railways Commission [1999] WASCA 63; (1999) 21 WAR 1
Re State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125; (2007) 34 WAR 342
Sakalo v The Medical Board of Western Australia [2002] WASCA 178
Seiffert v Prisoners Review Board [2011] WASCA 148
Wilderness Society of WA Inc v Minister for Environment [2013] WASC 307; (2013) 45 WAR 471
Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 88 ALJR 52
Yoong and Medical Board of Australia [2015] WASAT 6
Table of contents
Grounds of review 7
Legislation 8
- Commencement 8
Regulatory bodies 8
Codes and guidelines 9
Registration 9
Notifications 10
Investigations 11
Action after investigation 13
Establishment of a panel 13
Hearing by panel 14
Decision by panel 15
Appeals against the decision of the panel 16
- The applicant 17
The notification 17
Applicant's response to the notification 18
Investigation of the notification 19
Involvement of Downings Legal 21
Investigation of the applicant's failure to comply with notices 22
Attendance on 21 August 2013 23
Receipt of material from the Department of Immigration 24
Request for response in relation to allegations arising out of the investigation into the notification 25
Reference to the Panel 26
Allegations notified to the applicant before the panel hearing 26
Provision of clinical notes 27
Advice of hearing and hearing 27
Record of Panel proceedings 28
Advice of Panel's decision 30
Review by the State Administrative Tribunal 30
and professional misconduct 32
Task of the Panel 34
Reasons for decision 37
- What reasons must do 37
The panel's 'reasons' in the present case 39
- Structure of the reasons 39
Factual contests 39
Multiple permutations of possible findings in relation to 'conflict of interest' 40
Nature of the 'conflict of interest' 42
Breach of confidentiality 44
Providing information said to be false 45
Failure to address the statutory criteria 46
Conclusion as to the Panel's 'reasons' 47
Error of law on the face of the record 50
Other matters 53
- False notification 53
Concurrent hearing as to breach and penalty 54
Composition of Panel 55
Discretionary matters 57
Orders 58
1 MITCHELL J: On 26 May 2014, a performance and professional standards panel (Panel) of the Psychology Board of Australia (Board) decided that the applicant, who is a registered psychologist, had behaved in a way that constituted unsatisfactory professional performance. The Panel also decided to caution the applicant and impose conditions on the applicant's registration which required her to undertake certain education and training.
2 These decisions were purportedly made under the Health Practitioner Regulation National Law (National Law). The National Law is a Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (Act). The National Law, which constitutes a national legislative scheme for the regulation of the health profession, is applied in Western Australia by s 4 of the Act.
3 The applicant now seeks judicial review of these decisions, and applies for a writ of certiorari to quash the decisions and injunctive relief.
4 In my view, certiorari should issue to quash the decisions on two grounds.
5 The first ground is that the 'reasons' purportedly set out in the record of the Panel's decision were not 'reasons for the decision', within the meaning of s 192(3)(b) of the National Law, that the applicant had behaved in a way that constituted unsatisfactory professional performance. The inadequacy of the purported reasons is an error of law on the face of the record which grounds the issue of a writ of certiorari.
6 The second ground for the issue of certiorari is that it can be inferred from the record that the Panel committed jurisdictional error in making the decisions, by misconstruing the statutory provisions which were the source of the Panel's jurisdiction and thereby misconceiving the nature of the function which it was required to perform. This was both a jurisdictional error and an error of law on the face of the record.
7 Ordinarily, certiorari would be denied in the exercise of the court's discretion in a case like the present, where there was an alternative remedy of an appeal engaging the review jurisdiction of the State Administrative Tribunal (Tribunal). However, in the present case the applicant, who was at all times self-represented, instituted review proceedings in the Tribunal. She was told by a legal representative of the respondents and a member of the Tribunal that the Tribunal could not review the decision that the applicant had behaved in a way that constituted unsatisfactory professional performance. Reasonably relying on those incorrect statements, the applicant withdrew proceedings in the Tribunal and commenced judicial review proceedings in this court. In those unusual circumstances, I do not exercise my discretion to refuse certiorari on discretionary grounds.
8 My reasons for these conclusions are set out in more detail below.
Grounds of review
9 The applicant was self-represented both in proceedings before the Panel and the proceedings in this court.
10 Amended grounds of the application for judicial review were filed in the court on 10 December 2014. The amended grounds are as follows:
Ground 1. A breach of the rules of natural justice occurred in the making of the decision in that:
a) procedural unfairness founded the decision;
b) procedures that were required by law to be observed were not observed;
c) the making of the decision was an improper exercise of the powers conferred by the enactment in that:
(i) irrelevant material was taken into account while
(ii) relevant factual issues were ignored;
d) the decision makers exercised a power other than a purpose for which the power is conferred;
e) the decision makers exercised discretionary powers without regard to the merits of the case;
f) The decision makers exercised a power so unreasonable that no reasonable person could have exercised that power;
g) The decision makers based the decision on a fact that did not exist;
h) The decision constituted an abuse of power.
Ground 2. An error of law occurred in the conduct of the decision-makers caused by:
a) acceptance of fraudulent allegations;
b) a lack of evidence to justify the decision.
11 The opening words of ground 1 indicate that the complaint is of a breach of the rules of natural justice, the central requirements of which can be broadly identified as a fair hearing by a decision-maker who is, and who is seen to be, impartial. However, the balance of ground 1 makes it clear that the complaint extends to other substantive grounds of judicial review. Ground 1 is broadly expressed. I shall treat the particulars to ground 1 as independent grounds and not confine my consideration of ground 1 to issues of procedural fairness.
12 The applicant's submissions in support of these grounds display a less sophisticated understanding of administrative law than is reflected in ground 1. Given that the applicant is self-represented, I will consider the substance of the grounds against the record of proceedings before the Panel.
Legislation
13 A proper understanding of the procedural steps leading to the Panel's decision requires an understanding of the legislation which provides for the disciplinary process which was purportedly applied in this case. It is therefore convenient to begin by identifying the relevant legislative requirements.
Commencement
14 The substantive provisions of the National Law came into force in Western Australia on 18 October 2010.
Regulatory bodies
15 Section 23 of the National Law establishes the first respondent, referred to as the 'National Agency', as a body corporate representing the State. Its functions include providing administrative assistance and support to the National Boards in exercising their functions, and establishing an efficient procedure for receiving and dealing with notifications against persons who are, or were, registered.1
16 Section 31(1) of the National Law establishes the second respondent (Board) as a national health practitioner board for the health profession of psychology. The functions of the Board include to oversee the receipt, assessment and investigation of notifications about registered psychologists, and to establish panels to conduct hearings about health and performance and professional standards matters in relation to registered psychologists.2
17 Section 36 of the National Law empowers the Board to establish a committee for a participating jurisdiction to enable the Board to exercise its functions in the jurisdiction in a way that provides an effective and timely local response to health practitioners and other persons in the jurisdiction. In the exercise of this power, the Board has established the South Australia and Western Australia Board of the Psychology Board of Australia (State Board).
18 Section 163 of the National Law authorises the Board to appoint members of the National Agency's staff or contractors engaged by the National Agency as investigators for the purposes of the National Law.
Codes and guidelines
19 Section 39 of the National Law provides for the Board to develop and approve codes and guidelines to 'provide guidance to the health practitioners it registers' and about other matters relevant to the exercise of the Board's functions.
20 Section 41 of the National Law relevantly provides for a code or guideline approved by the Board to be admissible in proceedings under the National Law against a registered psychologist as evidence of what constitutes appropriate professional conduct or practice for psychology.
Registration
21 Part 7 of the National Law makes provision for the registration of persons in a health profession. Psychology is a health profession for the purposes of the National Law.3 It is accepted by all parties that the applicant has been registered as a psychologist at all material times.
22 Section 83(1) of the National Law provides that a health practitioner's registration is subject to any condition the Board considers necessary or desirable in the circumstances. Section 83(2) provides that, if the Board decides to register the person subject to a condition referred to in subsection (1), the Board must decide a review period for the condition.
23 Part 7 also makes provision for the renewal of the registration of a health practitioner.
Notifications
24 Part 8 of the National Law contains detailed provisions in relation to the health, performance and conduct of persons registered in a health profession under the National Law. Division 2 of pt 8 provides for mandatory notifications of certain matters concerning registered health practitioners and students. Division 3 of pt 8, which is relevant in this case, provides for voluntary notifications of certain matters concerning registered health practitioners and students.
25 By s 144(1) of the National Law, the matters about which a voluntary notification may be made include:
(a) 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;
(b) 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;
(c) that the practitioner is not, or may not be, a suitable person to hold registration in the health profession, including, for example, that the practitioner is not a fit and proper person to be registered in the profession;
…
(e) that the practitioner has, or may have, contravened this Law.
26 Section 145 of the National Law identifies the persons who may make a notification in the following terms:
Any entity that believes that a ground on which a voluntary notification may be made exists in relation to a registered health practitioner or a student may notify the National Agency.
27 The term 'entity' is defined to include a person and an unincorporated body.4
28 Section 149 of the National Law requires the Board to make a preliminary assessment of a notification within 60 days of the first respondent's receipt of the notification. The Board is required to decide whether the notification relates to a health practitioner registered by the Board and whether or not the notification relates to a matter that is a ground for notification. Certain, presently irrelevant, provision is also made about notification to a 'health complaints entity'.
29 Section 151 of the National Law provides for circumstances in which the Board may decide to take no further action in relation to a notification.
30 Section 152 of the National Law requires the Board to give written notice of the notification to the registered health practitioner concerned as soon as practicable after receipt. The notice must advise the registered health practitioner of the nature of the notification.
Investigations
31 Division 8 of pt 8 of the National Law deals with investigations by a National Board. Section 160(1) authorises the Board to investigate a health practitioner registered by the Board if it decides that it is necessary or appropriate:
(a) because the Board has received a notification about the practitioner or student; or
(b) because the Board for any other reason believes:
(ii) for a practitioner:
(I) the way the practitioner practises the profession is or may be unsatisfactory; or
(II) the practitioner's conduct is or may be unsatisfactory.
33 Section 160(2) of the National Law requires that, if the Board decides to investigate a registered health practitioner, it must direct an appropriate investigator to conduct the investigation.
34 Schedule 5 to the National Law confers powers on investigators. Clause 1 of sch 5 provides:
For the purposes of conducting an investigation, an investigator may, by written notice given to a person, require the person to:
(a) give stated information to the investigator within a stated reasonable time and in a stated reasonable way; or
(b) attend before the investigator at a stated time and a stated place to answer questions or produce documents.
35 Clause 2 of sch 5 creates offences concerning a failure to respond appropriately to a written notice issued under cl 1 of sch 5. Clause 2(1) creates an offence where a person required to give stated information to an investigator under clause 1(a) fails, without reasonable excuse, to give the information as required by the notice.
36 Clause 2(2) creates various offences where a person is given a notice to attend before an investigator. An offence will be committed against that subsection where the person fails, without reasonable excuse, to attend as required by the notice. An offence will also be committed where the person fails, without reasonable excuse, to produce a document the person is required to produce by the notice.
37 Clause 2(3) provides that, for the purposes of subclauses (1) and (2), it is a reasonable excuse for an individual to fail to give stated information, answer a question or to produce a document, if to do so might tend to incriminate the individual.
38 Clause 3 of sch 5 to the National Law provides that:
(1) If a document is produced to an investigator, the investigator may:
(a) inspect the document; and
(b) make a copy of, or take an extract from, the document; and
(c) keep the document while it is necessary for the investigation.
(2) If the investigator keeps the document, the investigator must permit a person otherwise entitled to possession of the document to inspect, make a copy of, or take an extract from, the document at the reasonable time and place decided by the investigator.
39 Clause 22 of sch 5 of the National Law creates an offence of obstructing an investigator in the exercise of a power, unless the person has a reasonable excuse.
Action after investigation
40 Section 166 of the National Law requires an investigator to give to the Board a report about the investigation directed by the Board as soon as practicable after it is completed. The report must include the investigator's findings about the investigation and recommendations about any action to be taken in relation to the relevant health practitioner.
41 Section 167 of the National Law provides:
After considering the investigator's report, the National Board must decide:
(a) to take no further action in relation to the matter; or
(b) to do either or both of the following:
(i) take the action the Board considers necessary or appropriate under another Division;
(ii) refer the matter to another entity, including, for example, a health complaints entity, for investigation or other action.
42 One kind of action which the Board may decide to take under another division of pt 8 of the National Law is to establish a performance and professional standards panel (panel) under div 11 of pt 8.
43 Section 182(1) of the National Law authorises the Board to establish a panel if:
(a) the Board reasonably believes, because of a notification or for any other reason, that:
(i) the way a registered health practitioner practises the health profession is or may be unsatisfactory; or
(ii) the registered health practitioner's professional conduct is or may be unsatisfactory;
and
(b) the Board decides it is necessary or appropriate for the matter to be referred to a panel.
44 Section 182(2) of the National Law requires that a panel consist of at least three members. Section 182(2) of the National Law provides that:
In choosing members of the panel, the National Board must, if possible, choose a member from the jurisdiction in which the matter the subject of the hearing occurred.
45 Section 183 of the National Law provides for the Board to appoint individuals to a list of persons approved to be appointed as members of panels. Section 182(4) requires that at least half, but no more than two-thirds, of the members of the panel must be persons who are registered health practitioners in the health profession for which the Board is established, chosen from a list approved under section 183. Section 182(5) requires that at least one member must be a person who represents the community, chosen from a list approved under section 183. Section 182(6) of the National Law provides that a person may not be appointed to the panel if the person has been involved in any proceedings relating to the matter the subject of the hearing by the panel.
Hearing by panel
46 Section 184 of the National Law requires a panel to give notice of its hearing of a matter to the relevant registered health practitioner. Section 184(2) requires that the notice state the following matters:
(a) the day, time and place at which the hearing is to be held; and
(b) the nature of the hearing and the matters to be considered at the hearing; and
(c) that the registered health practitioner or student is required to attend the hearing; and
(d) that the registered health practitioner may be accompanied at the hearing by an Australian legal practitioner or other person; and
(e) that if the registered health practitioner or student fails to attend the hearing the hearing may continue, and the panel may make a decision, in the practitioner's or student's absence; and
(f) the types of decision the panel may make at the end of the hearing.
47 Section 185 of the National Law provides that, subject to div 11, a panel may decide its own procedures. By s 185(2), a panel is required to observe the principles of natural justice but is not bound by the rules of evidence. Section 185(3) allows the panel to have regard to a report prepared by an assessor and 'any other information the panel considers relevant to the hearing of the matter'.
48 Section 187 enables a notifier to make a submission to the panel about a matter with the leave of the panel, if the subject matter of the hearing relates to a notification.
Decision by panel
49 Section 191 provides for the decisions which a panel may make after hearing a matter about a registered health practitioner. Relevantly for the present case, the panel may decide:
(a) the practitioner has no case to answer and no further action is to be taken in relation to the matter; or
(b) …
(i) the practitioner has behaved in a way that constitutes unsatisfactory professional performance.
the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience[.]
51 If the panel finds a practitioner has behaved in a way that constitutes unsatisfactory professional performance, the panel may impose conditions on the practitioner's registration, or caution or reprimand the practitioner.5 The conditions which may be imposed include a condition requiring the practitioner to complete specified further education or training within a specified period.6 If a panel decides to impose a condition on a registered health practitioner's registration, the panel must also decide a review period for the condition.7
52 Section 192(1) requires that a panel give notice of its decision to the Board as soon as practicable after making a decision under s 191 of the National Law. The Board must then give written notice of the panel's decision to the registered health practitioner and, if the hearing related to a notification, the notifier, within 30 days after the panel makes its decision.8
53 The notice given by the Board to the registered health practitioner must state:9
(a) the decision made by the panel; and
(b) the reasons for the decision; and
(c) that the registered health practitioner or student may appeal against the decision; and
(d) how an application for appeal may be made and the period within which the application must be made.
Appeals against the decision of the panel
54 Section 199 of the National Law provides that:
(1) A person who is the subject of any of the following decisions (an appellable decision) may appeal against the decision to the appropriate responsible tribunal for the appellable decision:
…
(i) a decision by a panel to impose a condition on the person's registration;
…
(k) a decision by a performance and professional standards panel to reprimand the person.
Factual and procedural history
56 Having set out the most relevant statutory provisions, I turn to the manner in which the relevant authorities dealt with the applicant's case. I make the following findings from affidavits filed by the respondents, the relevant parts of which were not contradicted or challenged in cross-examination. Ms Caddy was cross-examined on her affidavit, but the veracity of the contents of the affidavit were not challenged.
The applicant
57 It is accepted by all parties that the applicant is, and has at all material times been, a registered psychologist.
The notification
58 On 14 April 2011, the National Agency received a notification from a woman to whom I shall refer as Ms G in relation to the applicant. Ms G indicated in that form that she was a patient of the applicant. In the form, Ms G indicated that she had concerns about the applicant's professional standards (appropriate manner), conduct (discrimination or bias) and suitability to practise (providing false statements). In the form Ms G described the incident of which she complained in the following terms:
After the psychologist told my husband and I that we should not continue the marriage, I continued to be counselled by her as an individual patient. After several months, she notified me that my ex-husband had sought her assistance and wanted her to provide a meeting with myself and them to see if I would assist him staying in the country. When I said that this would not be possible, the psychologist then proceeded to say that this was unfortunate as he had no other way of staying in Australia if there was no support from me. I advised her that my interests were now to look after my mental health and that I was feeling pushed into doing something that made me feel uncomfortable. The psychologist then said that if I was not prepared to assist him, would I give her permission to write to the Department of Immigration stating that the reason why the marriage had dissolved was because I was a violent towards my husband. I said that it was wrong for her to ask me this, especially as this was a false statement and was the illegal. I said that I did not give her permission and that it was no longer appropriate for me to be seeking professional help from her.
59 On 20 April 2011, an officer of the first respondent wrote to the applicant enclosing a copy of the notification which had been received from Ms G. The officer indicated that the Board was conducting a preliminary assessment of the notification and would advise the applicant of the outcome in due course. The officer indicated that, to assist the Board with its assessment, a written response was requested from the applicant within 21 days of the date of the letter. The officer indicated that the applicant was under no obligation to respond, but should she wish to do so her response would be provided to the Board for consideration.
60 On 28 April 2011, an officer of the first respondent spoke with Ms G on the phone in order to clarify information regarding her notification against the applicant.
61 Ms G indicated that she and her then husband (to whom I shall refer as Mr G) began attending marriage counselling with the applicant in February 2010. Ms G said the counselling lasted between one and two months before the applicant advised the couple to dissolve the marriage. Ms G stated that she began individual counselling sessions with the applicant in May 2010. She said the incident outlined in her notification occurred in December 2010, at which point Ms G ceased counselling with the applicant.
62 Ms G stated that, up until the final consultation with the applicant, she was unaware that the applicant had been counselling her former husband. Ms G also stated that the applicant initially brokered the idea of the meeting between the two in order to 'assist with closure', and when Ms G declined the applicant raised the issue of her husband's residency status.
63 I note that the details of this telephone conversation between the officer of the first respondent and Ms G were not disclosed to the applicant at this time. The applicant only became aware of this further information later on when she received material relevant to the panel hearing.
Applicant's response to the notification
64 The applicant accepted the invitation to provide a written response in relation to the notification. The response, dated 11 May 2011, was received by the first respondent on 13 May 2011.
65 The applicant described her history of counselling Ms G, and on some occasions her husband jointly with Ms G, in some detail. She described an occasion where Mr G attended her office and told the applicant that he had left the marital home and believed that Ms G had returned to the home and resumed her employment. He explained that he would file for a divorce but was concerned about his application for permanent residency in Australia, as on his arrival in Australia he had been granted a temporary visa which would soon expire.
66 Mr G indicated that he was obliged to state the reason for the breakdown of his marriage, and said that it was related to issues of domestic violence. Mr G asked whether, as the applicant was continuing to see Ms G, the applicant could ascertain whether Ms G would be willing to verify that there were issues of domestic violence in the marriage breakdown.
67 The applicant indicated that she took the opportunity to ask Ms G this in a session conducted on or about 22 November 2010. The applicant said that, as soon as she posed the question, Ms G attacked her verbally and abusively, accusing the applicant of prejudice by listening to her husband. The applicant indicated that Ms G's demeanour was so threatening that the applicant felt she was at risk of physical harm in Ms G's presence. The applicant indicated that she explained to Ms G that she had a right to refuse Mr G's request and, by her response, she had exercised that right. The applicant described Ms G continuing to vent her anger at the applicant, and exiting the room in extreme anger, making no further appointments.
Investigation of the notification
68 On 3 June 2011, the State Board met and resolved that the notification did relate to a person who is a health practitioner registered by the Board, did relate to a matter that is a ground for a notification and that, while the notification could also be made to another body, it would be more appropriately investigated by the Board. The State Board referred the matter to the first respondent for the appointment of an investigator. On 29 June 2011, Mr Jordan Newnham was appointed by Dr Sharon Gaby, then the first respondent's Acting Director, Notifications (WA), to conduct the investigation.
69 On 19 July 2011, Dr Gaby wrote to the applicant requesting medical records. The letter was in the following terms:
The Board has appointed Mr Jordan Newnham to conduct the investigation. Please find enclosed a copy of the Certificate of Direction to Conduct an Investigation together with a certified copy of the Investigator's identity card.
To assist the Board with its investigation of this matter, you are required to provide a clear photocopy of your clinical notes relating to [Ms G], which would include copies of any relevant letters, summaries or other investigations.
The information provided will be used as part of the investigation to assist the Board in making a decision in this matter. …
Documents specified in this notice must be received by Friday, 29 July 2011.
Please note that it is an offence to fail to comply with this notice without reasonable excuse. The maximum penalty should you be found guilty of an offence is $5000 for an individual or $10,000 for a body corporate.
You may wish to seek advice from your professional association, professional indemnity insurer or an independent legal adviser.
Should you have any questions please contact Mr Jordan Newnham [contact details were then given]. (original emphasis)
70 On 20 July 2011, the applicant responded to Dr Gaby's letter in the following terms:
I refer to your letter dated 19 July 2011 which I received today.
I confirm that you have requested that I provide you with a copy of the clinical records of my consultations with the notifier.
I regret that, for reasons relating to my own protection, which includes my physical welfare, and further to my response to you dated 11 May 2011, I am unable to comply with your request at this point in time.
I am however, willing to attend before the investigator at a stated time and place to answer questions or produce documents.
71 A letter dated 19 March 2012, signed by Dr Gaby and Mr Newnham, reiterated the information previously stated and concluded:
It would be appreciated if you could provide the requested information at your earliest convenience to assist our investigation.
Please note that it is an offence to fail to comply with this notice without reasonable excuse. The maximum penalty should you be found guilty of the offence is $5000 for an individual or $10,000 for a body corporate.
72 There then followed a series of exchanges between officers of the first respondent and the applicant in relation to the medical records, in which officers of the first respondent required that they be delivered and the applicant declined to do so for various reasons.
73 On 14 August 2012, Ms Sarah Gnasso was directed to conduct the investigation concerning the notification of Ms G in relation to the applicant.
74 Also on 14 August 2012, in a letter signed by Pamela Malcolm and Ms Gnasso, the applicant was advised that Ms Gnasso required her to provide all relevant patient records and information relating to Ms G, which must be received by close of business on 28 August 2012. The applicant responded on 27 August 2012 declining to provide the information and providing a number of reasons for doing so.
75 There was a series of further correspondence between the first respondent and the applicant in relation to the documents. On 17 August 2012, Ms Malcolm and Ms Gnasso again wrote to the applicant setting out the history of the matter and expressing the view that the applicant's conduct in the period 19 July 2011 to 17 August 2012 in failing to comply with the investigators notice was an obstruction of an investigator, which was a criminal offence unless the person had a reasonable excuse. The first respondent's officers recommended that the applicant contact her professional indemnity insurer immediately and request a referral to one of the insurer's panel of solicitors for urgent advice in relation to the issues raised in the letter.
Involvement of Downings Legal
76 In January 2013, the first respondent was contacted by an insurance company requesting copies of material relating to the notification. On 16 January 2013, Andrew Davidson, a partner of Downings Legal, contacted an officer of the first respondent by email, indicating that he now acted for the applicant in respect of the notification by Ms G, and requesting copies of the relevant documents. Documents were provided by the first respondent to Downings Legal under cover of a letter dated 17 January 2013.
77 On 25 January 2013, Downings Legal wrote to the first respondent confirming that they acted on behalf of the applicant on instructions from the applicant's professional indemnity insurer. Downings Legal indicated that they had met with the applicant and were reviewing the matter, and asked for confirmation that the first respondent would 'not take any pre-emptive action without further correspondence from this office'.
78 Enquiries by the first respondent of Downings Legal resulted in a response of 31 January 2013, in which the solicitors indicated that they were conscious of the urgency in responding to the first respondent's correspondence.
79 The first respondent provided further documents to Downings Legal on 21 February 2013.
80 On 6 March 2013, Ms Gnasso wrote to Downings Legal noting that she was still to receive a response to correspondence in relation to the issue of the applicant's non-compliance with investigator notices. Ms Gnasso indicated that, if a response was not received as a matter of priority, the first respondent would consider presenting the matter to the Board and recommending further action in relation to the issue of the applicant's non-compliance with investigator notices.
81 A telephone note dated 18 March 2013 indicates that, on that day, Downings Legal advised the first respondent that they were no longer acting for the applicant, having received instructions from the applicant's insurer to cease doing so.
Investigation of the applicant's failure to comply with notices
82 On 5 April 2013, the State Board considered a recommendation, from Ms Gnasso, that the State Board resolve to investigate the applicant's conduct in failing, without reasonable excuse, to comply with 'an investigator notice'. On that date the State Board resolved to investigate that conduct. It appears from Ms Gnasso's report and the Board's minutes that the investigator notice to which they referred was that dated 19 July 2011.
83 On 29 April 2013, Dr Gaby and Ms Gnasso wrote to the applicant informing her of the State Board's decision. However, that letter referred to an investigation of a failure to comply with 'Investigator Notices issued in an investigation into your professional performance'. The letter did not specify which notices were the subject of the investigation. That letter required the applicant to provide a written response explaining why she had failed, without reasonable excuse, to comply with the investigator's notice and stated that the requested information must be received by 21 May 2013.
84 On 30 April 2013, Ms Gnasso was directed to conduct the investigation in relation to the matter which the Board had decided to investigate.
85 On 1 May 2013, the applicant wrote to the first respondent requesting that the matter be referred to Andrew Davidson of Downings Legal who was acting for her in the matter.
86 On 10 May 2013, the applicant again wrote to the first respondent, attaching a letter of 8 May 2013 which she had received from Downings Legal indicating that they had been instructed to cease acting on her behalf because the insurer had denied liability under the policy. In her letter of 10 May 2013, the applicant denied that she had obstructed the investigation of the matter, and indicated that she provided a true copy of every clinical note to Mr Davidson on 25 January 2013.
87 On 19 May 2013 the applicant wrote to the first respondent indicating that she had contacted Mr Davidson and requested the return of all documents which she provided to him on 25 January 2013, which she said demonstrated her compliance with the first respondent's requirements. Further correspondence between the applicant and first respondent then ensued.
Attendance on 21 August 2013
88 On 13 August 2013 Christopher Montgomery, the Acting Manager, Notifications of the first respondent, and Ms Gnasso wrote to the applicant. The letter read in part:
Pursuant to clause 2(a) of Sch 5 of the [National Law], Ms Gnasso requires you to attend before her to produce all patient records and information relating to [Ms G].
The arrangements for the attendance are:
date: Wednesday, 21 August 2013
time: 10:30 AM
expected duration: one hour
location: level 1541 Hay Street
Subiaco W.A. 6008
Specifically, Ms Gnasso requires you to produce the following documents to her at that time:
• a copy of all clinical records relating to [Ms G]
• a copy of all relevant documents, correspondence, emails, file notes and reports about the service provided to [Ms G] including:
- treatment plans
- clinical notes
- billing account information
- referrals
- correspondence / phone calls
- photographs
- patient information (details, history except)
- consent forms
90 Ms Gnasso's file note of 21 August 2013 indicates that the applicant did attend the meeting. The note indicates that, after asking various questions about the matter, the applicant was advised that the meeting was only for Ms Gnasso to obtain copies of the applicant's clinical notes. The following was then noted
Dr Solomon stated that she would not provide Ms Gnasso with her clinical records until such time as her queries with regards to the investigation had been answered. Mr Montgomery explain to Dr Solomon that under Sch 5 of the National Law, Ms Gnasso had the power is to request that Dr Solomon provide her with the requested information and explained once again that the purpose of the meeting was to obtain the requested documents.
91 After various other comments of the applicant were noted, the file note concluded:
Doctor Solomon stated that she had all of her clinical records with her, however would not let them 'out of her hands', as she believes that the investigation processes are not been carried out correctly. Mr Montgomery again explain to Doctor Solomon that documents were being requested from her under the powers outlined in the National Law, but Dr Solomon insisted that she would not provide Ms Gnasso with the records at this stage as she did not trust that AHPRA would handle them correctly.
Mr Montgomery explicitly asked Doctor Solomon whether she was refusing to allow Ms Gnasso to make copies of her clinical records and Doctor Solomon responded in the affirmative. Mr Montgomery explained that in the circumstances, the meeting was to be concluded.
Receipt of material from the Department of Immigration
92 On 12 November 2013, the first respondent received correspondence from the Department of Immigration indicating that the applicant had provided a statutory declaration relating to family violence on 21 December 2010. A copy of the statutory declaration was provided to the first respondent.
93 The statutory declaration annexed a letter to the Department from the applicant which described her becoming acquainted with Mr G after she had seen his former wife in a professional capacity from the beginning of February 2010. In the letter, the applicant said that Mr G accompanied Ms G at her regular appointment on 3 May 2010. The reason for this attendance was due to the fact that, in her sessions with the applicant, Ms G had reported various episodes of domestic dispute involving herself and Mr G. The applicant then gave an account of incidents of violence described to her by Mr G. The applicant said that it was reported to her that, on 7 May, Mr G left the marital home and made a decision not to resume the marriage.
94 In the letter the applicant indicated that she had seen Mr G on a number of occasions and that his belief was that the marriage breakdown was result of recurring episodes of violence instigated by Ms G. The applicant indicated that, in light of the reports and records accrued by her as a result of counselling both Mr G and Ms G, she had formed the opinion that the marriage relationship was irretrievable because of the risks associated with domestic violence. She indicated that a report submitted by Mr G to authorities in relation to his immigration status was an accurate account of the relationship and of the issues that led to its breakdown.
Request for response in relation to allegations arising out of the investigation into the notification
95 On 13 November 2013, Mr Montgomery and Ms Gnasso wrote to the applicant setting out issues then identified in relation to the applicant's 'clinical care and behaviour' in the following terms:
1 It is alleged that you failed to disclose or properly manage a conflict of interest in that:
a. following joint marriage counselling to [Ms G and Mr G] you pursued individual counselling sessions with [Mr G], without advising the Notifier
b. you provided a report to the Department of Immigration in support of [Mr G's] visa application, by which the Practitioner acted against the interests of the Notifier.
2 It is alleged that you proposed that the Notifier submit a false statement to the Department of Immigration in an effort to assist [Mr G] to remain in Australia.
3 It is alleged that you breached confidentiality by inappropriately providing a report in support of [Mr G's] visa application to the Department of Immigration, in which you used information relating to and obtained from the Notifier without her consent or knowledge.
4 It is alleged that you failed to communicate openly and honestly with the Notifier about your intentions to provide services to [Mr G] following the breakdown of their marriage and about support [Mr G's] visa application.
96 The applicant was required to provide a written response to the specific allegations by 27 November 2013.
97 There was some further discussion between the applicant and the first respondent, but a substantive response was not provided.
Reference to the Panel
98 On 6 December 2013, Ms Gnasso made recommendations in relation to the notification made by Ms G, and the State Board decided to refer the matter to a panel. Also on 6 December 2013, Ms Gnasso made recommendations in relation to the allegation that the applicant failed, without reasonable excuse, to comply with 'Investigator Notices' issued under the National Law, on this occasion referring to 'repeated requests' for the clinical records. On 6 December 2013, the State Board decided to refer that matter to a panel.
99 On 6 January 2014, Ms Emma Caddy, a legal adviser to the first respondent, wrote to the applicant advising her of the matters which had been referred to the Panel.
100 After a request by Ms Caddy, the applicant provided the first respondent with a letter dated 10 January 2014, which identified the dates on which Mr G or Ms G attended her practice.
Allegations notified to the applicant before the panel hearing
101 On 5 February 2014, Ms Caddy wrote to the applicant, enclosing a statement of proposed facts and statement of allegations (Statement) which would be considered by the Panel. The applicant was invited to make a written response to the Statement by 26 February 2014. A draft index of the documents to be provided to the Panel was also included. The allegations in the Statement were in the following terms:
It is alleged by the Psychology Board of Australia that, by virtue of the conduct referred to in paragraphs above, the Practitioner has behaved in a way that constitutes unsatisfactory professional performance pursuant to s 191(1)(b)(i) of the National Law and/or unprofessional conduct pursuant to s 191(1)(b)(ii) of the National Law, in that the Practitioner:
1. failed to disclose and/or appropriately managed a conflict of interest arising from:
a) the provision of individual counselling services to both [Ms G and Mr G] after the breakdown of their marriage; and or
b) her role in [Mr G's] visa application;
2. breached client confidentiality by providing information obtained in joint counselling consultations to the Department of Immigration and Citizenship, without [Ms G's] consent;
3. inappropriately provided an account of the basis for the marriage breakdown to the Department of Immigration and Citizenship, in circumstances where [Ms G] had:
a) stated the basis to be false; and
b) expressly denied her consent to it being disclosed;
4. failed, without reasonable excuse, to comply with Investigator Notices issued under the National Law.
102 The Statement identified 'Investigator Notices' issued on 19 July 2011, 19 March 2012, 28 June 2012, 14 August 2012, 17 August 2012, 31 August 2012, 21 September 2012 and 5 June 2013. Reference was also made to the notice of 13 August 2013 requiring the applicant's attendance at the offices of the first respondent to produce all patient records and information relating to Ms G.
103 On 26 February 2014, the applicant submitted a response to the Statement, which denied a number of the factual matters alleged against her. I shall return to those denials in greater detail when considering the grounds on which judicial review is sought.
Provision of clinical notes
104 On 3 April 2014, the applicant provided to Ms Caddy clinical notes relating to the treatment of Ms G and Mr G.
Advice of hearing and hearing
105 On 19 May 2014, Ms Caddy advised the applicant that the Panel would hold a hearing in relation to her matter on 26 May 2014. Relevant documents were enclosed.
106 Sometime before the hearing, the applicant filed further submissions in relation to the hearing.
107 The hearing was conducted on 26 May 2014 before a panel composed of Andrea Quinn and Dixie Statham, both registered psychologists, and Margaret Shapiro, a community member. All members were from Queensland and the Panel members sat in Queensland with a video link to Perth. Ms Caddy was present as counsel assisting the Panel. The applicant appeared for herself at the hearing. Ms G did not attend.
Record of Panel proceedings
108 A record of the proceedings of the Panel was signed by the chair of the Panel on 26 May 2014. That record was provided to the Board and considered by the State Board on 4 July 2014.12
109 Paragraphs 1 - 40 of the record set out the facts which were alleged by the Statement. Paragraph 43 set out the allegations contained in the Statement. Paragraph 44 indicated that the applicant denied the allegations and relied on certain materials which she had provided. Paragraphs 45 - 47 set out what had been said by Ms G in the initial notification and her telephone discussion on 28 April 2011. Paragraphs 48 - 69 then set out submissions which were made by the applicant at the hearing.
110 The record then concluded as follows:
Findings
70. After considering all of the documents and evidence, including the written and oral evidence, the Panel finds that the Practitioner has behaved in a way that constitutes unsatisfactory professional performance pursuant to s 191(1)(b)(i) of the National Law in that the Practitioner:
a) failed to disclose and/or appropriately manage a conflict of interest arising from:
i. the provision of individual counselling services to both [Ms G and Mr G] after the breakdown of their marriage; and/or
ii. her role in [Mr G's] visa application;
b) breached client confidentiality by providing information obtained in joint counselling consultations to the Department of Immigration and Citizenship, without [Ms G's] consent;
c) inappropriately provided an account of the basis for the marriage breakdown to the Department of Immigration and Citizenship, in circumstances where [Ms G] had:
i. stated the basis to be false; and
ii. expressly denied her consent to it being disclosed;
d) failed, without reasonable excuse, to comply with Investigator Notices issued under the National Law.
71. In reaching this finding, the Panel has had regard to, amongst other things:
a) that when the Practitioner agreed to support to [sic] [Mr G's] immigration application, she moved into the role of advocate and entered into a dual relationship without appropriate regard for the prior context of her advocacy;
b) that a complicating factor was that [Mr G's] wife, [Ms G], was a former client;
c) that the Practitioner failed in her obligations to her former client, [Ms G], by including confidential information in her declaration to the Department of Immigration and Citizenship which had been obtained from [Ms G] during counselling sessions (Bundle Tab 36);
d) that the quality of the Practitioner's record keeping was well below the expectations of her professional peers, which compromised the viability and veracity of her submissions as a response to the notification;
e) that, during the hearing, the Practitioner:
i. repeatedly demonstrated her lack of awareness regarding her mandated responsibilities under the National Law, especially with respect to the notification process; and
ii. demonstrated a lack of awareness, or ability to adequately conceptualise, the reactions of her former client, [Ms G], as potentially indicative or symptomatic of Borderline Personality Disorder;
f) the APS Guidelines on confidentiality, managing professional boundaries and multiple relationships and psychological services involving multiple clients (Bundle Tabs 49 to 51inclusive).
Advice of Panel's decision
112 On 18 June 2014, a legal adviser employed by the first respondent wrote to the applicant advising her of the Panel's decision and enclosing the record to which I have referred, which was said to contain the reasons for the Panel's decision.
Review by the State Administrative Tribunal
113 On or about 14 July 2014, the applicant applied for review of the Panel's decision before the Tribunal. A mediation conference was scheduled for 30 September 2014. At the conclusion of the mediation conference, the Tribunal made an order that, pursuant to s 46(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), 'the applicant have leave to withdraw the proceeding and the proceeding is hereby withdrawn'.
114 In order to understand the circumstances in which the Tribunal proceedings were withdrawn, it is necessary to understand the position which the first respondent took in the Tribunal.
115 Counsel for the respondents indicated to me that the position adopted by the respondents in relation to the application for review in the Tribunal was as follows. The respondents took the position that s 199 of the National Law provides that a panel decision to impose conditions is an appellable decision, but does not provide that a panel finding of unsatisfactory professional performance is an appellable decision. That is, the respondents took the position that the Tribunal could review the imposition of conditions, but could not review the underlying decision that the applicant had behaved in a way that constitutes unsatisfactory professional performance.
116 Ms Caddy gave evidence that, at the mediation, she and the mediator drew the applicant's attention to the wording of s 199(1)(i) of the National Law and said the following:
[T]hat the basis of the appeal was the panel's decision to impose conditions further to the findings of unsatisfactory professional performance. I noted that there was no provision in section 199 to appeal the caution. The member then stated that the starting point must be that the finding of unsatisfactory professional performance is correct and the question of whether the decision to impose conditions is correct, ie, are the conditions needed to protect the public and/or the standard of the profession. The member then stated that Dr Solomon may wish to give serious thought to being legally represented in the appeal. That was supported by myself and confirmed that that had been suggested throughout the process and Dr Solomon had, to date, declined to seek legal advice.
Dr Solomon, later on in the mediation, noted that she had a very specific argument about the whole process and her issue was with the abuse of process which she had not addressed fully. My response to that was that if there was a real issue with an abuse of process then she may wish to seek legal advice on judicial review or an appeal to the Supreme Court. I then later stated it might be appropriate to pen the matter for directions to allow Dr Solomon to seek legal advice on how to proceed. Dr Solomon then stated that it was clear to her that she would not succeed in the appeal of the conditions. Dr Solomon then inquired as to appropriate legal practitioners she could approach to seek advice. And some were identified to assist.
117 I infer that the reason why the applicant withdrew the Tribunal proceedings is because the respondents took the position, which appeared to be accepted by the Tribunal member conducting the mediation conference, that the Panel's decision that the applicant had behaved in a way that constituted unsatisfactory professional performance could not be reviewed by the Tribunal.
118 The position adopted by the respondents before the Tribunal was found to be incorrect when Curthoys J, sitting as President of the Tribunal, delivered his reasons for decision in Yoong and Medical Board of Australia,13 on 28 January 2015. In that case, Curthoys J decided, on the determination of a preliminary issue, that Dr Yoong had a right of appeal to the Tribunal against a panel's substantive finding that Dr Yoong behaved in a way that constituted unprofessional conduct pursuant to s 191(1)(b)(ii) of the National Law and that Dr Yoong's right of appeal was not limited to an appeal against the penalty imposed by the panel.
119 The decision in Yoong, which has not been subject to appeal, is, in my view, plainly correct. However, given the fact that she was not represented, and given the position adopted by the respondents and the Tribunal member at the mediation conference, it was reasonable for the applicant to apprehend that the finding of unsatisfactory professional performance could not be reviewed by the Tribunal.
Unsatisfactory professional performance, unprofessional conduct and professional misconduct
120 In considering the content of the statutory concept of 'unsatisfactory professional performance' it is relevant to compare the definition of that term with definitions of the terms 'professional misconduct' and 'unprofessional conduct'.
121 'Unprofessional conduct' is defined to mean 'professional conduct that is of a lesser standard than that which may reasonably be expected of the health practitioner by the public or the practitioner's professional peers'. A number of specific matters are then included in the definition, such as:
a contravention by the practitioner of this Law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention[.]
122 There is clearly a large degree of overlap between the concepts of 'unprofessional conduct' and 'professional misconduct'. The National Law provides for the same kind of consequences for the two categories of behaviour. Both may be the subject of a finding by a panel under s 191(1)(b)(i) and s 191(1)(b)(ii) respectively of the National Law. The potential disciplinary responses to a finding of unprofessional conduct under s 191(3) of the National Law are the same as the available responses to a finding of unsatisfactory professional performance. Similar provision is made for the Tribunal in s 196(1)(b)(i) and s 196(1)(b)(ii) and s 196(2) of the National Law.
123 There are very limited differences in the provisions of the National Law in relation to 'unprofessional conduct' and 'unsatisfactory professional performance'. One difference is that s 136 creates an offence of directing or inciting a practitioner to do anything, in the course of a practitioner's practice of the relevant health profession, that amounts to unprofessional conduct or professional misconduct, but does not create a cognate offence in relation to unsatisfactory professional performance.
124 A more significant difference is found in the definition of 'professional misconduct', which is expressed in the following terms:
professional misconduct, of a registered health practitioner, includes:
(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
125 The definition of 'professional misconduct' refers to unprofessional conduct but not unsatisfactory professional performance. However, the definition is inclusive rather than exclusive. A matter must be referred to the Tribunal under s 190(b)(i) if a panel believes that the evidence demonstrates that the practitioner may have behaved in a way that constitutes professional misconduct. A notification about professional misconduct must be referred to the Tribunal under s 193(1)(a)(i) of the National Law.
126 What then is the difference between 'unsatisfactory professional performance' and 'unprofessional conduct'? It seems to me that the concept of unprofessional conduct is broader than, but not necessarily more serious than, unsatisfactory professional performance. Unsatisfactory professional performance seems to be a subset of unprofessional conduct. If a practitioner behaves in a way that shows their knowledge etc in the practice of the health profession to be below the standard reasonably expected of a practitioner of an equivalent level of training or experience (unsatisfactory professional performance), it is difficult to see why he or she has not also engaged in professional conduct that is of a lesser standard than that which might reasonably be expected by the public or his or her peers (unprofessional conduct). However, the concept of unsatisfactory professional performance is focused on the capacity of the practitioner 'in the practice of the health profession', which seems to be a narrower concept than 'professional conduct'. The phrase 'in the practice of the health profession' is apt to denote the actual delivery of health services, rather than administrative, regulatory and other matters associated with the delivery of health services.
127 The focus of the definition of 'unsatisfactory professional performance' is on the knowledge etc of the practitioner, whereas the focus of 'unprofessional conduct' is on the conduct of the practitioner. However, under s 191(1)(b) of the National Law, it is necessary to find that a practitioner 'behaved in a way' that constitutes unsatisfactory professional performance. This reference to behaviour indicates that the concept of unsatisfactory professional performance is not divorced from the practitioner's conduct.
128 The concept of 'unprofessional conduct' is also broader than 'unsatisfactory professional conduct' in that a number of matters, such as contravention of the National Law, are expressly included in the former but not the latter.
Task of the Panel
129 Having regard to the above broader statutory context, it is appropriate to focus on what is required of a panel in deciding that a practitioner has behaved in a way that constitutes unsatisfactory professional performance, within the meaning of s 191(1)(b)(i) of the National Law.
130 The first thing the panel must be satisfied of is that the relevant practitioner has 'behaved in a way' that satisfies certain criteria. The first step for a panel under s 191(1)(b)(i) is, therefore, to identify the particular way in which the practitioner has behaved, and the circumstances in which the behaviour occurred. It will only be once the relevant behaviour, and the circumstances in which it occurred, have been identified that the question of whether the behaviour is of a prescribed character can be properly addressed.
131 Although the comment was made in relation to the former provisions of the Medical Act 1894 (WA) which were in materially different terms, the observations of the Court of Appeal, in Dekker v Medical Board of Australia,14 are, in my view, apposite here:
Ordinarily, at least, it would be expected in a case of this kind that the Tribunal would first consider, and make careful findings of fact about, the medical practitioner's conduct and all the relevant circumstances in which it occurred. The relevant circumstances would, at least ordinarily, include any standard, or specific professional duty, generally accepted within the medical profession at the time, which had potential application to the other primary facts as found.
132 Once findings have been made about the manner and circumstances in which the practitioner has behaved, the panel must consider whether behaving in that way, in the relevant circumstances, constituted unsatisfactory professional performance.
133 The definition of the term 'unsatisfactory professional performance' has three elements.
134 The first element is that the behaviour enables a certain inference to be drawn about the knowledge, skill or judgment possessed, or care exercised by, the practitioner. Having found the practitioner to have behaved in a particular way, the panel must determine whether it can be satisfied that the behaviour reflects a certain level of knowledge, skill or judgment (or lack thereof) possessed by the practitioner, or whether a conclusion can be reached about the level of care (or lack thereof) exercised by the practitioner. A finding must be made about that matter.
135 The second element is that the knowledge etc is possessed, or the care is exercised, 'in the practice of the health profession in which the practitioner is registered', in the sense described above.
136 The third element is that the level of knowledge etc or care reflected in the relevant behaviour is 'below the standard reasonably expected of a health practitioner of an equivalent level of training and experience'. Reaching a conclusion about this element involves answering three questions:
1. What level of training and experience is possessed by the practitioner?
2. What standard of knowledge etc or care would be expected of a health practitioner with that level of training and experience?
3. Was the knowledge etc or care reflected in the practitioner's behaviour (as found by the panel) below the standard identified in the answer to question 2?
137 For the purposes of analysing the requirements of the National Law, I have identified three elements of the statutory term 'unsatisfactory professional performance', and three questions to be answered in determining whether the third element is satisfied. It will not always be necessary for the panel to deal with each of those steps separately and sequentially. To take a hypothetical example, a panel might find that a qualified surgeon with 10 years' experience operated on a patient with an instrument which the surgeon knew to be unsterilised in circumstances where sterile instruments were obtainable (the behaviour). The panel may conclude that it is reasonably expected that any qualified surgeon would possess the judgment not to use unsterilised instruments in those circumstances, and that the practitioner's judgment in the practice of surgery, reflected in his or her behaviour, fell below that standard of judgment. Such a finding would address each of the elements of the issue which a panel is required to address, even though the elements may be dealt with together.
138 Although panel proceedings are not necessarily an adversarial process, it remains necessary for the panel to be positively satisfied of the matters to which I have referred. In this case the applicant did not have to establish that she did not engage in unsatisfactory professional performance. In considering whether it is satisfied that a practitioner has engaged in unsatisfactory professional performance it remains necessary for the panel to keep in mind the observations of Dixon J in Briginshaw v Briginshaw:15
Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences…This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.
139 That passage was also referred to by the Court of Appeal in Dekker.16 The court recognised that the Briginshaw standard was to be applied to the Tribunal when dealing with professional disciplinary matters under the former provision of the Medical Act.17 In my view the same standard is applicable to the panel's functions in dealing with disciplinary matters under the National Law. Any adverse finding in a disciplinary process is a serious matter for a professional person. The serious consequences of such a finding mean that the facts showing that a person has engaged in unsatisfactory professional performance must be affirmatively established by reliable material.
Reasons for decision
140 Section 192(2)(a) and s 192(3)(b) required the Board to give the applicant written notice of the Panel's decision which must state 'the reasons for the decision'. That notice had to be given to the applicant within 30 days after the Panel made its decision. The respondents put forward the record dated 26 May 2014 and signed by the chair of the panel as the reasons for the Panel's decision. That record also constituted the purported notice to the Board required by s 192(1) of the National Law and was incorporated into the notice purportedly given to the applicant under s 192(2) of the National Law.
What reasons must do
141 It is necessary to firstly identify the content of the statutory requirement that notice of the Panel's decision contain its reasons for decision. As the High Court noted in Wingfoot Australia Partners Pty Ltd v Kocak,18 determination of the standard required of a written statement of reasons involves an exercise in statutory construction.
142 The content of the duty to provide reasons imposed on a medical assessment panel established under the Workers' Compensation and Rehabilitation Act 1981 (WA) (as it was then called), was considered by Wheeler J, with whom Pidgeon and White JJ concurred, in Re a Medical Assessment Panel; Ex parte Hays.19 In that case the medical assessment panel's reasons were very short and stated answers to questions posed to the panel and matters to which the panel had regard in coming to those conclusions. Wheeler J described the content of the duty to give reasons in the following terms:
So far as the 'reasons' of the panel are concerned, it is fair in my view, to characterise the mere listing of matters allegedly considered by the panel as a complete failure to provide reasons. The essence of reasons for decision is that they disclose the reasoning processes of the Tribunal. Fulfilment of the obligation to give reasons ensures that a person whose interests may be adversely affected by a decision understands why the decision has been made, and allows a party dissatisfied with a decision to determine whether there has been reviewable error.
As has been said on many occasions, no standard of perfection is required in preparation of the reasons, and they are to be considered fairly and not combed through 'with a fine appellate toothcomb to find error'. At a minimum however, it seems to me that in a case of this kind the panel must not merely list the materials upon which it relied, without any hint as to what portions of those materials it considered particularly relevant or the way in which it reconciled any portions of those materials which might have been in conflict. It should at least have set out what it considered to be the material facts which emerged from the materials to which it referred, and its process of reasoning from those material facts to its conclusion. Although each case must be considered individually, having regard to the purpose of the obligation to provide reasons, it is generally sensible for a fact finding body of this kind to make particular reference to material which would appear to be inconsistent with the conclusion which it reached … and to explain why such material was considered not to be relevant, or to be outweighed by other considerations (6 - 7). (citations omitted)
143 These observations have been endorsed both in relation to reasons of medical assessment panels established under the Workers' Compensation and Rehabilitation Act,20 and in other statutory contexts.21 Later decisions have emphasised the need to avoid reviewing reasons of an administrative tribunal 'with an eye keenly attuned to the perception of error' and, in an appellate context, to read reasons under challenge as a whole and fairly, taking account of the decision-maker's lack of legal expertise, without applying a fine-tooth appellate comb.22 The importance of reasons explaining the actual path of reasoning adopted by the decision-maker was also emphasised in Wingfoot.23
144 In identifying the standard required of reasons in the present case, it is necessary to take account of both the function performed and the character of the body performing that function. The function performed concerns the discipline of health practitioners, who are professional persons for whom any disciplinary finding is likely to have significant consequences. What is involved in the exercise of that function has been described above. The persons performing the function are not required to have, and generally will not have, legal qualifications.
145 In identifying the standard of reasons required by the statute it is also relevant to consider the right of review provided by s 199 of the National Law. In my view it can be inferred that the primary reason for the statutory requirement to give reasons, in the present context, is to enable the practitioner to understand why the panel has concluded that she has behaved in a way that constitutes unsatisfactory professional performance. It is only once the practitioner has an understanding of the basis for the panel's conclusion that she can make a proper assessment of whether to seek a review of the panel's decision under s 199 of the Act.
146 Although the comments of Wheeler J in Hays were made in a somewhat different statutory context, in my view the passage I have quoted above reflects the requirement for reasons contained in the National Law. The statutory requirements for the composition of the panel also indicate the importance of reading reasons fairly and as a whole, taking account of the decision-maker's lack of legal expertise, without applying a fine-tooth appellate comb.
The panel's 'reasons' in the present case
147 In my view the record of the Panel's decision fails to meet the standard of reasons which Wheeler J identified. As in Hays, there has in this case been a complete failure by the Panel to give reasons for its decision that the applicant had behaved in a way that constituted unsatisfactory professional performance.
Structure of the reasons
148 The first 69 paragraphs of the Panel's record constitute a mere recitation or summary of the allegations and submissions made to the Panel. Paragraph 70 is a repetition of the allegation made to the Panel, expressed as a conclusion reached by the Panel. Paragraph 72 sets out conclusions in relation to penalty. There is no explanation as to how the Panel concluded that the applicant had behaved in a way that constituted unsatisfactory professional performance, and came to the conclusion that the allegations made by the first respondent were established. Paragraph 71 sets out matters to which the Panel had regard in reaching the conclusions it did, but does not explain the process of reasoning by which the Panel came to that conclusion.
Factual contests
149 The importance of reasons which explained why the Panel came to the factual conclusion which it did was, in this case, increased by the conflicts of factual material which the Tribunal had to resolve in order to reach those conclusions.
150 For example, the first respondent alleged that, up to November 2010, Ms G and Mr G attended a number of individual consultations with the applicant.24 The applicant admitted that those individual consultations occurred.25 The first respondent alleged that the applicant did not inform Ms G that she was also seeing Mr G for individual counselling sessions.26 The applicant denies this, indicating that at all times Ms G was aware that the applicant was seeing Mr G for individual consultations and on occasions requested that the applicant convey messages to him on her behalf.27
151 The first respondent's allegation that Ms G was unaware of the counselling sessions was presumably prompted by Ms Newnham's note of her telephone conversation with Ms G on 28 April 2011. In that note, Ms G is recorded as saying that, up until her final consultation with the applicant, she was unaware that the applicant had been counselling Mr G.28
The majority in the High Court disparaged the approach which distinguished between statutory requirements which were characterised as 'directory', and those which were characterised as 'mandatory', adopting the criticisms of that distinction enunciated by the Court of Appeal in New South Wales in Tasker v Fullwood [1978] 1 NSWLR 20, 23 - 24. In the view of the majority:
'A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute" [93].'
182 First, the decision of a panel takes effect when it is made. Notices are given under s 192 at a subsequent time, which in the case of the notice from the Board to the practitioner may be up to 30 days after the panel's decision. The decision of the panel may operate before notice is given. This suggests that the panel's decision is a separate step from the subsequent giving of notice, and operates independently from the notice.35
183 Secondly, there is no manifest inconvenience or unfairness if a decision operates in the absence of notice. The available responses of a panel are the imposition of conditions on registration or a caution. A caution does not affect the rights, duties or liabilities of the practitioner. Failure to comply with a condition of registration is not an offence, although it may constitute behaviour for which disciplinary action may be taken.36 However, disciplinary action could not reasonably be taken for breach of a condition of which a practitioner had not been notified. A review by the Tribunal will be a de novo review of the question,37 and so the capacity of a practitioner to seek review in the Tribunal will not be practically impeded by the absence of reasons for the decision.
184 In my view, a failure to give notice of the kind required by s 192 of the National Law does not constitute a jurisdictional error invalidating a decision made under s 191 of the National Law.
Error of law on the face of the record
185 My conclusion that the failure to give notice with reasons does not amount to a jurisdictional error invalidating the Panel's decision is not the end of the inquiry. Certiorari is available not only to quash a decision infected by jurisdictional error, but also to respond to an error of law on the face of the record.38
186 In many cases there is room for debate as to what constitutes the 'record' on which the error of law must appear. Reasons for decision will not ordinarily constitute part of the record for these purposes unless the reasons are deliberately incorporated into the decision itself.39 In this case, however, the only record of the Panel's decision was the record to which I have referred, which has been incorporated into the notices purportedly given under s 192 of the National Law. The notice of the Panel's decision to the Board, provided for in s 192(1) of the National Law, is the only document provided for by the Law which could constitute the record of the Panel's decision. The record signed by the Panel's chair on 26 May 2014 clearly comprises 'the record' for present purposes. Such reasons as existed were incorporated in this record.
187 The decision in Wingfoot establishes that where there is a statutory duty to give reasons, and reasons given form part of the record, inadequacy of reasons is an error of law on the face of the record.40
188 Wingfoot was decided in a statutory context whether there was a general provision incorporating reasons into the record of an administrative decision for the purposes of the relevant court's jurisdiction to grant certiorari. No such provision exists in Western Australia, so the proposition that a failure to comply with a statutory duty to give reasons constitutes an error of law on the face of the record grounding certiorari does not hold in this State without qualification. However, the proposition does apply where the reasons of an administrative body are incorporated into the relevant record.
189 The point made in the previous paragraph is illustrated by the decision of the Western Australian Court of Appeal in Seiffert. In that case the Prisoners Review Board was held to have failed in its statutory duty to give reasons. Certiorari was claimed on the ground that the inadequate reasons constituted an error of law of the face of the record. Certiorari was denied on the basis that the inadequate reasons did not form part of the record.41 However, the Court of Appeal's reasons in that case do not deny that certiorari would have been available if the reasons had formed part of the record.
190 In the present case the National Law provided for the 'record' of the Panel's decision to be in the form of a notice to the Board which was, implicitly, required to include the Panel's reasons for decision. The Panel purported to incorporate reasons in the only record it made of its decision. However, the 'reasons' purportedly given were inadequate and were not 'reasons for the decision' within the meaning of s 192 of the National Law. In those circumstances the inadequacy of the reasons constituted an error of law on the face of the record. Certiorari can issue to quash the Panel's decision.
Jurisdictional error
191 In my view there is a second reason why the Panel's decision must be set aside. In my view it is to be inferred that the Panel misconstrued the statutory provisions which were the source of the Panel's jurisdiction and thereby misconceived the nature of the function which it was required to perform. That is a well-established category of jurisdictional error even for an inferior court.42
192 In my view this jurisdictional error may be inferred from a number of aspects of the Panel's record.
193 First, the statutory criteria of unsatisfactory professional performance were not addressed at all. That the Panel did not explain why it found the behaviour referred to in par 7 of the record to constitute unsatisfactory professional performance is a significant aspect of the inadequacy of the Panel's reasoning. That the statutory criteria were not referred to gives rise to an inference that those criteria were not applied.
194 Secondly, par 70(a) of the record does not make any specific finding of fact, but rather leaves open the nine possible permutations referred to above [153]. This indicates that the Panel did not appreciate the need to make positive findings about the way the applicant behaved, having regard to the considerations referred to in Briginshaw.
195 Thirdly, some aspects of the conduct relied on by the Panel do not relate to behaviour of the applicant 'in the practice of the health profession' of psychology, for the purposes of the definition of 'unsatisfactory professional performance'.
196 For example, paragraphs 70(b) and 70(c) of the record deal with the applicant's behaviour in providing information to the Department of Immigration. In providing that information the applicant was not, according to the Panel, providing services as a psychologist. Rather, she 'moved into the role of an advocate' (par 71(a) of the record). This may be 'professional conduct' for the purposes of the definition of 'unprofessional conduct'. However, the applicant was not, in my view, practising the health profession of psychology when she provided information to the Department of Immigration.
197 It may be that, in an appropriate case, a court could draw an inference, from a practitioner's behaviour outside the practice of psychology, about the knowledge, skill or judgment possessed by the practitioner in the practice of that health profession. For example, the disclosure of confidential patient information outside the practice of psychology might say something about the applicant's knowledge of the obligations associated with dealing with confidential information received in the practice of psychology. However, it does not appear from the record that the Panel adopted this process of reasoning.
198 The inference that the Panel misunderstood the concept of 'unsatisfactory professional performance' is greater in the case of par 70(d) of the record, which refers to the applicant failing to comply with notices issued under the National Law without reasonable excuse. Such conduct may constitute an offence against cl 2(1) or cl 2(2)(d) of sch 5 to the National Law. As such, the behaviour alleged in par 70(d) of the record would at least prima faciefall within par (a) of the definition of 'unprofessional conduct'. However, in my view, the applicant's response to regulatory notices issued by an inspector did not constitute conduct in the practice of the profession of psychology, or reflect her knowledge, skill or judgment in the practice of that profession. It is not conduct which is capable of constituting unsatisfactory professional performance. The fact that par 70(d) refers to the responses to the investigator's notices as constituting 'unsatisfactory professional performance' gives rise to the inference that the Panel has not properly understood that concept.
199 For the above reasons, I infer that the Panel misconstrued the statutory provisions which were the source of its jurisdiction and thereby misconceived the nature of the function which it was required to perform. In doing so it acted beyond its statutory authority, committing a jurisdictional error which grounds the issue of certiorari to quash the impugned decision.
Other matters
200 The above conclusions mean that the Panel's decision to find that the applicant behaved in a way that constituted unsatisfactory professional performance, and its consequential decision to caution the applicant and impose conditions on her registration, should be quashed by a writ of certiorari. It is therefore unnecessary to address other matters raised by the applicant's grounds. However, as the Panel may reconsider the issues raised after its decision is quashed, I address three matters which may impact on its future consideration of the matter.
False notification
201 Much of the applicant's energy in arguing her case was devoted to the proposition that the notification made by Ms G was 'false' and therefore could not found the subsequent disciplinary action. That argument is clearly based on a misapprehension of relevant legal principle.
202 It is clear that the Panel's jurisdiction to inquire and act does not depend on the existence of a notification which is true, or indeed on the existence of a valid notification at all. A function of the Panel in this case was to inquire into whether the applicant had in fact engaged in the conduct alleged by Ms G's notification. However, its authority to undertake that inquiry did not depend on the truth of the allegations made by Ms G.
203 Further, the Board may establish a panel under s 182(1)(a) of the National Law if it reasonably believes that the way the practitioner practices the health profession is or may be unsatisfactory 'because of a notification or for any other reason'. This provision of the National Law makes it clear that the authority of the panel does not depend on the existence of a notification at all, much less one which is true. The conditions for the valid exercise of the Board's power to establish a panel turn on the existence of a relevant reasonable belief, which does not require the Board to establish on the balance of probabilities that the belief is correct or true.43
204 Therefore, I reject the applicant's arguments based on the contention that Ms G's notification contains false information.
Concurrent hearing as to breach and penalty
205 It appears from the Panel's decision that it received concurrent submissions as to whether the applicant had behaved in a way that constituted unsatisfactory professional performance and as to the penalty which should be applied if she had behaved in that way.
206 In Sakalo v The Medical Board of Western Australia,44 Wheeler J noted that this is a highly undesirable practice, at least where a view may be taken that conduct warrants suspension or removal from the roll.
207 I would extend that observation further and say that it is a highly undesirable approach in any disciplinary proceedings, particularly where the person who is the subject of the proceedings is not legally represented. The question of what is the appropriate penalty can only be properly addressed once the practitioner has an understanding of the facts which the panel has found and the basis on which it has concluded that he or she has engaged in unsatisfactory professional performance. Further, a practitioner who is not a qualified lawyer is unlikely to be able to cope with the process of making submissions as to the appropriate disciplinary response to conduct which they deny occurred, before the panel has decided that the conduct did occur. In my view, in any case where the practitioner denies engaging in unsatisfactory professional performance or unprofessional conduct, the panel should first determine whether the practitioner has behaved in the relevant way and then, after separately hearing from the practitioner, determine the appropriate penalty to be applied.
208 As the decision in Sakalo illustrates, a failure to conduct a separate penalty hearing may constitute an unfair process which leads to the conclusion that there has been a breach of the requirements of procedural fairness, which condition the valid exercise of almost all disciplinary powers of this kind.45 Whether the process is so unfair as to constitute a breach of those requirements will depend on all the circumstances of the case.46
209 Given the conclusions I have reached as to the invalidity of the Panel's decision to decide that the applicant had behaved in a way that constituted unsatisfactory professional performance, it is unnecessary for me to determine whether the failure to have a separate hearing as to penalty denied natural justice to the applicant. However, in any future proceedings, panels should ensure that a separate hearing as to penalty is conducted after findings have been made in relation to contested allegations of unsatisfactory professional performance or unprofessional conduct.
Composition of Panel
210 The Panel in this case was composed of two registered psychologists and a community member sitting in Brisbane, all of whom were from Queensland. The Panel hearing was conducted by a video link to Perth, where the applicant attended the hearing.
211 Section 182 and 183 of the National Law required the Panel to consist of at least three members chosen from a list approved under s 183, at least half but no more than two thirds of whom were (in this case) registered psychologists and at least one of whom was a community member.
212 Section 182(3) of the National Law provides:
In choosing members of the panel, the National Board must, if possible, choose a member from the jurisdiction in which the matter the subject of the hearing occurred.
213 An affidavit of Ms Caddy sworn on 1 April 2015, disclosed that there was one unconflicted registered psychologist from Western Australia and a number of unconflicted community members from Western Australia (one of whom was uncontactable) who were on the approved list established under s 183 of the National Law. In those circumstances it was clearly possible to choose one registered psychologist and one community member of the panel from Western Australia. As none of the Panel members were from Western Australia there was a failure to comply with s 182(3) of the National Law.
214 The respondents contended that it was not considered possible to establish a panel in Western Australia, on the basis that the respondents sought to ensure all panel members were physically present in the same State at the time of the hearing. There was no actual evidence of that fact, but even assuming it to be established the fact concerns what was considered desirable or convenient rather than what was possible. The respondents could have arranged for an interstate member of the panel to travel to Western Australia, or to have connected by video link. The fact that the respondents desired all panel members to sit in the one location did not mean that it was not possible to appoint a member from Western Australia.
215 Given my conclusions that the Panel's decision should be quashed on other grounds, it is unnecessary for me to decide whether the contravention of s 182(3) of the National Law results in the invalidity of the decision of the Panel. However, in any reconsideration of the present matter the respondents should ensure that the Board complies with s 182(3) of the National Law in constituting any future panel.
Relationship of error to grounds of appeal
216 The submissions of the applicant, who as I have noted was not legally represented, did not focus on the issue of whether the Panel's decision should be set aside as the inadequacy of the Panel's reasons constituted an error of law on the face of the record. However, it may be seen to be raised by the ground that 'procedures that were required by law to be observed were not observed'. The Panel and Board were required by the National Law to give notice of the Panel's decision which included reasons for the decision. They failed to follow this procedure. In addition the Panel was required to properly understand s 191(1)(b)(i) of the National Law and the associated definition of 'unsatisfactory professional performance'. The Panel's record gives rise to the inference that it failed to observe this requirement.
217 The basis of my conclusion that certiorari should issue in this case, although raised by the grounds, was not reflected in written or oral submissions advanced by the applicant. In my view it is appropriate to give an in-person litigant some latitude and deal with deficiencies in the process raised by the grounds even if the in-person litigant has failed to appreciate the point.
218 However, in adopting such a lenient approach to the applicant, it is important to also ensure that the represented respondent receives a fair hearing. To do so, I raised a number of concerns which I had with counsel for the respondents in the course of his oral submissions, and gave him an opportunity to file supplementary written submissions responding to matters raised of which he did not have advance notice.
219 Those supplementary submissions were filed on 31 March 2015. Most of the submissions related to the issue of whether the Panel misunderstood the nature of its role were directed to the question of whether there was sufficient evidence before the Panel to support its findings. However, even if an affirmative answer to that question is assumed, the Panel's decision will not be saved if the inference that the Panel misunderstood the nature of its function is sustained. Even where material before the Panel is capable of supporting a finding that a practitioner has behaved in a way that constitutes unsatisfactory professional performance, the valid exercise of the Panel's disciplinary powers depends on the Panel properly understanding the relevant provisions of the National Law.
220 Neither the issues ventilated in oral submissions on 17 February 2015, nor the supplementary written submissions dealt with the question of whether the inadequacy of the Panel's purported reasons should lead to the issue of a writ of certiorari on the ground of error of law on the face of the record. I therefore decided to give notice of that issue to the parties and invite them to deal with this issue in written submissions. The respondents filed written submissions in relation to this issue on 26 May 2015. The applicant filed written submissions on 27 May 2015.
Discretionary matters
221 As I have noted, the applicant had a right to seek review of the Panel's decision by way of an appeal to the Tribunal under s 199 of the National Law. On such an appeal, issues as to the validity of the Panel's decision would have been moot, as the Tribunal would have considered the matters afresh.
222 Ordinarily, the availability of a de novoreview in the Tribunal will constitute a powerful discretionary reason for this court to refuse to issue a writ of certiorari, on the ground that an alternative remedy was available.47
223 However, this is far from an ordinary case. The applicant did engage the Tribunal's review jurisdiction. She was, in effect, told by both the respondents' legal representative and a Tribunal member that she was in the wrong place, and should seek judicial review in this court. Given that she was not legally represented, it was reasonable for the applicant to have acted on these representations. She did in fact act on them by withdrawing her proceedings in the Tribunal and beginning judicial review proceedings in this court. The respondents now ask that I, in effect, tell the applicant that she has come to the wrong place and should have continued her proceedings in the Tribunal, and deny relief to which she would otherwise be entitled on that basis. The appellation 'Kafkaesque' could reasonably be applied to that approach, which I decline to take.
224 Given the particular manner in which the applicant was directed to this Court from the Tribunal, I do not consider it appropriate to exercise my discretion to refuse to grant certiorari on discretionary grounds.
Orders
225 For the above reasons I would order the issue of a writ of certiorari to quash the Panel's decision that the applicant behaved in a way that constituted unsatisfactory professional performance and the consequential decision to caution the applicant and impose conditions on her registration.
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1 Section 25(a) and (i) of the National Law.
2 Section 35(1)(g) and (h) of the National Law.
3 Section 5 of the National Law (par (n) of the definition of 'health profession').
4 Section 5 of the National Law (definition of 'entity').
5 Section 191(3) of the National Law.
6 Section 191(3)(a)(i) of the National Law.
7 Section 191(4) of the National Law.
8 Section 192(2) of the National Law.
9 Section 192(3) of the National Law.
10 Section 193(2)(a)(i) of the National Law read with s 6 of the Act.
11 Section 202 of the National Law.
12 Affidavit of Neil McLean sworn 21 January 2015 [16] - [17].
13Yoong and Medical Board of Australia [2015] WASAT 6.
14Dekker v Medical Board of Australia [2014] WASCA 216 [71].
15Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361 - 363.
16Dekker [75].
17 See also Dekker [89] - [90].
18Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 88 ALJR 52 [43] - [45].
19Re a Medical Assessment Panel; Ex parte Hays (Unreported WASC, Library No 980575).
20Re Bannan; Ex parte Suleski [2001] WASCA 289 [12].
21Coffey LPM Pty Ltd v The Contaminated Sites Committee [2014] WASC 504 [76] - [77].
22Coffey [76] and cases there cited.
23Wingfoot [55].
24 Statement of Proposed Facts & Statement of Allegations pars 6 - 7; affidavit of Caddy sworn 24 December 2014, par 17.
25 Response to statement of proposed facts; affidavit of Caddy sworn 24 December 2014, par 38.
26 Statement of Proposed Facts & Statement of Allegations, par 8; affidavit of Caddy sworn 24 December 2014, par 18.
27 Response to statement of proposed facts; affidavit of Caddy sworn 24 December 2014, par 38.
28 Affidavit of Gnasso sworn 29 December 2014, par 18.
29 Panel's Record dated 26 May 2014, par 70(a).
30 Statement of Proposed Facts & Statement of Allegations paragraphs 15, 17; affidavit of Caddy sworn 24 December 2014, paragraphs 18 - 19; Response to statement of proposed facts; affidavit of Caddy sworn 24 December 2014, par 42.
31 Statement of Proposed Facts & Statement of Allegations par 16; affidavit of Caddy sworn 24 December 2014, par 18; Response to statement of proposed facts; affidavit of Caddy sworn 24 December 2014, par 42.
32 Response to statement of proposed facts; affidavit of Caddy sworn 24 December 2014, paragraphs 41 - 42.
33Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355.
34Wilderness Society of WA Inc v Minister for Environment [2013] WASC 307; (2013) 45 WAR 471 [200] - [202].
35 See Re Minister for Immigration; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 [44] - [46], [55], although the decision in that case was influenced by an express provision that failure to give reasons did not invalidate the relevant decision. See also Seiffert v Prisoners Review Board [2011] WASCA 148 [158] - [179].
36 See the notes to s 83, s 103(1) and s 112(3) of the National Law.
37 Section 27 of the State Administrative Tribunal Act 2004 (WA).
38Wingfoot [26].
39Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 180 - 181; Re State Administrative Tribunal; Ex parte McCourt [2007] WASCA 125; (2007) 34 WAR 342 [22].
40Wingfoot [28]; see also Kocak v Wingfoot Australia Partners [2012] VSCA 259 [73]; Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372 [130]; Re Bannan; Ex parte Suleski [2001] WASCA 289 (referring to Hays and Re a Medical Assessment Panel; Ex parte Rusich [2001] WASCA 111).
41Seiffert [186].
42Craig 177 - 178; Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 [45]; Hamersley Iron Pty Ltd v James [2015] WASC 10 [53].
43Coppa v Medical Board of Australia [2014] NTSC 48; (2014) 291 FLR 1 [52] - [54].
44Sakalo v The Medical Board of Western Australia [2002] WASCA 178 [43].
45 To similar effect see Re Railway Appeal Board; Ex parte The Western Australian Government Railways Commission [1999] WASCA 63; (1999) 21 WAR 1, 21.
46 See Rush v WA Amateur Football League Inc [2007] WASCA 101; (2007) 35 WAR 101 [73] - [75], [123] - [126].
47Re Carey; Ex parte Exclude Holdings Pty Ltd [2006] WASCA 219; (2006) 32 WAR 501 [134] - [140].
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