Tung v Health Care Complaints Commission

The appeal concerned a medical practitioner, Dr. Tung, who had been found by the Medical Tribunal to have engaged in unsatisfactory conduct and to be impaired. The Tribunal had ordered his deregistration. Dr. Tung appealed this decision to the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the Medical Tribunal had denied Dr. Tung procedural fairness by failing to disclose its observations of him as a witness, which were confirmatory of expert diagnoses of a psychiatric condition, and whether the Tribunal had adequately engaged with the medical reports relied upon by Dr. Tung. A further issue was whether the Tribunal had erred in law by making a deregistration order when its findings regarding impairment did not establish present incompetence to practice medicine.

The Court of Appeal held that the Tribunal was not required to specifically draw its observations of Dr. Tung to his attention, as these observations merely confirmed existing expert evidence. It also found that the Tribunal had not failed to engage with the medical reports. However, the Court determined that the Tribunal's finding that impairment was likely to impact on the practice of medicine "sooner or later" did not support a finding of present incompetence, and therefore, the deregistration order could not be lawfully made.

Consequently, the Court of Appeal dismissed the appeal against the Tribunal's findings of impairment but allowed the appeal against the orders made by the Tribunal. The deregistration orders were set aside, and the matter was remitted to the Tribunal for reconsideration of the orders to be made consequent on its findings. The first respondent was ordered to pay Dr. Tung's costs of the appeal.