Vega Vega v Hoyle

Case [2015] QSC 111

SUPREME COURT OF QUEENSLAND

CITATION:

Vega Vega v Hoyle & Ors [2015] QSC 111

PARTIES:

ANTONIO VEGA VEGA

(applicant)

v
DR PHILIP MATTHEW HOYLE, Investigator pursuant to s 190 Hospital and Health Boards Act 2011

(first respondent)
and
MS MEGAN FAIRWEATHER, investigator pursuant to
s 190 Hospital and Health Boards Act 2011
(second respondent)
and
MS SONJA READ, Investigator pursuant to s 190 Hospital and Health Boards Act 2011
(third respondent)
and
PROFESSOR VILLIS MARSHALL, Clinical Reviewer Investigator pursuant to s 125 Hospital and Health Boards Act 2011
(fourth respondent)
and
DR HOWARD LAU, Clinical Reviewer Investigator pursuant to s 125 Hospital and Health Boards Act 2011
(fifth respondent)
and
IAN MAYNARD, Director-General, Queensland Department of Health
(sixth respondent)
and
STATE OF QUEENSLAND
(seventh respondent)
and
CENTRAL QUEENSLAND HOSPITAL AND HEALTH SERVICE
(eighth respondent)

FILE NO:

BS No 8591 of 2014

DIVISION:

Trial Division

PROCEEDING:

Application for statutory review

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

5 May 2015

DELIVERED AT:

Brisbane

HEARING DATE:

4,5 February 2015

JUDGE:

A Lyons J

ORDER:

1.     The applicant is entitled to orders in terms of the relief sought in paragraphs 4 and 6 of the Amended Application for a Statutory Order of Review.

2.     I will hear from the parties as to the terms of the orders and as to costs.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – MEANING OF DECISION – REPORTS AND RECOMMENDATIONS – where the applicant was subject to three parallel investigations under the Hospital and Health Boards Act 2011 (Qld), namely a Root Cause Analysis, a Clinical Review and a Health Service Investigation, which were initiated by the eighth respondent and the Queensland Department of Health – where adverse findings were made against the applicant in the Clinical Review Report and the Health Service Investigation Report – whether these adverse findings would constitute decisions of an administrative character under the Judicial Review Act 1991 (Qld)

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES – DECISIONS UNDER AN ENACTMENT – PARTICULAR CASES – where the applicant was subject to three parallel investigations under the Hospital and Health Boards Act 2011 (Qld), namely a Root Cause Analysis, a Clinical Review and a Health Service Investigation, which were initiated by the eighth respondent and the Queensland Department of Health – where adverse findings were made against the applicant in the Clinical Review Report and the Health Service Investigation Report – whether these adverse findings would constitute decisions made under an enactment under the Judicial Review Act 1991 (Qld)

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – EXISTENCE OF OBLIGATION – RIGHTS AND INTERESTS AFFECTED BY DECISION – where the applicant argues that the provision of the Clinical Review Report and the Health Service Investigation Report, which contained adverse findings against him, was a precondition to the sixth respondent issuing directions which may affect…

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AGLC
Vega Vega v Hoyle [2015] QSC 111
Case
[2015] QSC 111
Decision Date

CaseChat Overview and Summary

The case of Vega Vega v Hoyle involves an application for judicial review of decisions made against Dr Vega Vega following investigations under the Hospital and Health Boards Act 2011 (Qld). Dr Vega Vega sought to challenge the adverse findings made in two reports, the Clinical Review Report and the Health Service Investigation Report, on various grounds, including breaches of natural justice, bias, and failure to consider relevant evidence. The respondents, who were involved in the investigations, argued against the applicant's claims, particularly asserting that confidentiality requirements under the Hospital and Health Boards Act 2011 (Qld) justified their actions.

The central legal issues revolved around whether the adverse findings in the Clinical Review Report and the Health Service Investigation Report constituted reviewable decisions under the Judicial Review Act 1991 (Qld), and if so, whether these decisions were made in breach of natural justice, were biased, or failed to consider relevant evidence. The applicant argued that the failure to provide him with all the material relied upon by the investigators and reviewers, the existence of bias due to the respondents' affiliations, and the rejection of favourable evidence without explanation, all amounted to breaches of natural justice.

The court examined the nature of the reports and whether they constituted decisions under an enactment. It found that while the reports contained adverse findings, they did not constitute decisions that were subject to judicial review. However, the court proceeded to address the applicant's claims of breaches of natural justice, bias, and failure to consider relevant evidence. The court concluded that the confidentiality arguments put forward by the respondents were insufficient to justify the non-disclosure of material relied upon in the reports. Furthermore, the court found that there was no actual bias or apprehension of bias attributable to the respondents. Finally, the court held that the failure to consider relevant evidence and provide reasons for rejecting favourable evidence amounted to a failure to take into account relevant considerations, rendering the reports invalid.

The court granted the applicant's claims for declarations that the Investigation Report and the Clinical Review Report were produced in breach of natural justice and were invalid. The court also ordered that the seventh and eighth respondents be restrained from taking any adverse action against the applicant based on the findings in the reports. The court reserved the decision on costs for further submissions from the parties.

Orders

Orders of the court

1. The applicant is entitled to orders in terms of the relief sought in paragraphs 4 and 6 of the Amended Application for a Statutory Order of Review.

2. I will hear from the parties as to the terms of the orders and as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Ms Fairweather reiterated that the request for all documents was unreasonable and in relation to the request for specific handwritten file notes of witness conferences and telephone records for 28 April 2014 the letter stated:“1. Dr Hoyle and I had carefully considered your request for the handwritten notes of witness conferences made by Dr Hoyle and/or Professor Marshall. Dr Hoyle and Professor Marshall obtained witness evidence in strict confidence in order to encourage people to speak freely to them about a number of issues as outlined in the terms of reference. The information (including as contained in records created by Dr Hoyle and Professor Marshall) is protected by section 197(1) of the Hospital and Health Boards Act 2011 Qld. I again advise that witness conference notes will not be provided. I am satisfied, to the best of my ability to say following a review of those documents and without having been present for the interviews, that the substance of the comments potentially adverse to your client have been fairly reflected in the draft reports. I note multiple positive comments that have been included in the draft report about your client. Dr Hoyle has advised that he disregarded a number of negative comments made about your client where he considered witnesses were either not objective or not in a position or role to fairly comment on clinical matters pertaining to your client’s practice.” (my emphasis) The Terms of Reference at paragraph 5.5 clearly required that material, which was adverse to Dr Vega Vega, that was credible, relevant and significant had to be released to him. Furthermore, if it was in writing, it had to be provided within a reasonable time frame. Furthermore the Terms of Reference at paragraph 5.7 provided that the identity of persons providing information had to be kept confidential “unless the identification of the person is essential to ensure that natural justice is afforded to any particular person.” (my emphasis) It was clear therefore that natural justice had to be afforded to Dr Vega Vega and the letter of 4 September 2014, the solicitors for Dr Vega Vega pointed that out to the investigators. I note, therefore, the continued request for the notes of the interviews with the 58 witnesses and the continued refusal in the face of those clear requests. Two reasons given for the non-disclosure of those interview notes. One was an argument as to confidentiality and the second was that a sufficient disclosure had been made of the contents of the interviews. I turn first to a consideration of the issues of confidentiality.Was this degree of confidentiality required? There is no doubt that the health service investigators prima facie had a duty of confidentiality as did the clinical reviewers. The provisions in s 132 and s 197 of the Boards Act provided that information which was given to the investigators or reviewers in those capacities was not to be disclosed. However, the sections clearly state that disclosure could occur to the extent that it was necessary for the investigator or reviewer to perform their functions under the Boards Act. The reviewers and investigators had a clear duty to afford natural justice to Dr Vega Vega and there was a clear specific requirement to provide adverse material which was credible, relevant and significant to the findings was to be released.

Decision

Reasons for decision

On 12 September 2014, the current application for a statutory order of review was filed and an amended application was filed on 4 February 2015. Those amendments were not objected to and the amended application is in the following terms:“Application to review the decisions of the First to Fifth Respondents as either Investigators (the First to Third Respondents) or Clinical Reviewers (Fourth and Fifth Respondents) in purported pursuance of their respective appointments by the Sixth Respondent pursuant to either s. 190 or 125, respectively, of the Hospital and Health Boards Act 2011 (“the Boards Act”) to deliver an Investigation Report or Report of a Clinical Review, respectively, into the treatment of four named patients at the Rockhampton Hospital of the Eighth Respondent and the compliance or non-compliance with policies in place at the Rockhampton Hospital.The Applicant is aggrieved by the decision because, in each case, the four patients are patients in whose treatment he was integrally involved and he is potentially the subject of adverse findings in the Investigation Report and/or Report of the Clinical Review.The grounds of the application are:1. That a breach of the rules of natural justice happened in relation to the decisions in that a reasonable apprehension of bias arose out of the Second and Third Respondents’ appointment and participation as Investigators and their status as employees of Minter Ellison, solicitors, in circumstances where Minter Ellison has been engaged in an advocacy role for either the Queensland Department of Health (an entity forming part of the Seventh Respondent) or the Eighth Respondent in respect of the same matters concerning the Applicant as were the subject of the Investigation and Clinical Review.2. That a breach of the rules of natural justice happened in relation to the decisions in that the First to Fifth Respondents prevented the Applicant from having access to information and documents relied upon by the Investigators and Clinical Reviewers including the notes of interviews with some 58 witnesses interviewed as part of the Investigation and Clinical Review and, thereby, prevented the Applicant from knowing the basis of the case against him and from making properly informed responses during the process of the Investigation and Review.3. That a breach of the rules of natural justice happened in relation to the decisions in that the conduct referred to in the preceding paragraph contributed to and reinforced the reasonable apprehension of bias that had arisen as a result of the matters referred to in paragraph 1 of these grounds.4. That a breach of the rules of natural justice happened in relation to the decisions in that the First and Second and the Fourth and Fifth Respondents, in preparing documents setting out potential adverse findings against the Applicant or Draft Reports of their Findings, rejected evidence of or on behalf of the Applicant without providing reasons for that rejection or ignored evidence supportive of the Applicant (without giving reasons).5. That a breach of the rules of natural justice happened in relation to the decisions in that the conduct referred to in the preceding paragraph contributed to and reinforced the reasonable apprehension of bias that had arisen as a result of the matters referred to in paragraph 1 of these grounds.6. That a breach of the rules of natural justice happened in relation to the decisions in that the First and Second and the Fourth and Fifth Respondents, having received correspondence on behalf of the Applicant raising the types of concerns set out in paragraph 4 of these grounds, failed to reply to such correspondence and, without further reference to the Applicant, proceeded to make their respective decisions by concluding and delivering their reports to the Sixth Respondent (in the case of the Fourth and Fifth Respondents, by way of delivering it to the First and Second Respondents).7. That a breach of the rules of natural justice happened in relation to the decisions in that the conduct referred to in the preceding paragraph contributed to and reinforced the reasonable apprehension of bias that had arisen as a result of the matters referred to in paragraph 1 of these grounds.7A. The fourth and fifth respondents failed to take into account a relevant consideration, namely, the effect of expert evidence as revealed in the reasons of His Honour, Judge Horneman-Wren, when His Honour gave judgment for the applicant in proceedings brought against the Medical Board of Australia in Queensland Civil and Administrative Tribunal on 27 June 2014.The applicant claims:1. An order that, by way of final order, the Investigation Report of the First, Second and/or Third Respondents delivered to the Sixth Respondent purportedly pursuant to s. 199 of the Boards Act is hereby quashed and set aside;2. Further and in the alternative, a declaration that the Investigation Report of the First, Second and/or Third Respondents delivered to the Sixth Respondent purportedly pursuant to s. 199 of the Boards Act was produced in breach of natural justice and is, thereby, invalid;3. An order that, by way of final order, the Report of the Clinical Review of the Fourth and Fifth Respondents delivered to the First and Second Respondents purportedly pursuant to s. 136 of the Boards Act is hereby quashed and set aside;4. Further and in the alternative, a declaration that the Report of the Clinical Review of the Fourth and Fifth Respondents delivered to the First and Second Respondents purportedly pursuant to s. 136 of the Boards Act was produced in breach of natural justice and is, thereby, invalid;5. An order that, by final order, the Seventh and Eighth Respondents are restrained, from taking any action adverse to the Applicant on the basis of any finding, recommendation or other material contained in either the Investigation Report or the Report of the Clinical Review;6. An order that the Seventh Respondent pay the costs of the Applicant.”The Decision Making Regime under the Boards Act

Ratio Decidendi

Legal Principle Established

Neither am I satisfied that the actions of Dr Hoyle in failing to provide this material to Dr Vega Vega constitutes actual bias. A finding of actual bias is notoriously difficult and will only be found if it is clearly established that the relevant decision-maker approached the determination of an issue with a closed mind and was unable or unwilling to decide the issue impartially.[48] Furthermore, clear evidence of the state of mind of the decision-maker is required. None of these factors are present in this case. [48] Sun v Minister of Immigration and Ethic Affairs (1997) 151 ALR 505, 551-522; Gamaethige v Minister of Immigration and Multicultural Affairs (2001) 109 FCR 424, 442-443.Has there been a failure to take into account relevant considerations? In this regard, Counsel for Dr Vega Vega argues that Dr Hoyle and the clinical reviewers were reluctant to take into account the views of the independent experts that Dr Vega Vega had presented to QCAT. It is argued that the evidence of Dr Wood before QCAT was that, in his opinion, the removal of a kidney was appropriate on the knowledge that was available at the time with respect to patient A. It is argued that Dr Hoyle gives no explanation as to why he comes to a different view to Dr Wood. It is also argued that Dr Hoyle’s view that it was inappropriate to carry out the surgery at the Hospital does not take into account the opinion of Dr Wood, which was that it was reasonable to operate at the Hospital. It is argued that Dr Wood was cross-examined before QCAT and that Judge Horneman-Wren made findings based on his evidence. Furthermore, Judge Horneman-Wren found that operating in Rockhampton was reasonable. Counsel for Dr Vega Vega also submits that Dr Hoyle has not explained why he expressed a distinctly different view. It is also argued that Dr Wood expressed the view that it was appropriate for Dr Vega Vega to make the decision about whether to attempt the surgery and this was endorsed by Judge Horneman-Wren. A different view, however, was taken by Dr Hoyle who did not explain why his view differed to that of Dr Wood and QCAT. Further evidence was also referred to by Counsel for Dr Vega Vega as having been ignored or rejected despite having been considered by QCAT. It is argued, therefore, that Dr Hoyle has failed to come to terms with the evidence or explain why the evidence put forward by Dr Vega Vega was rejected. It is argued that it is inappropriate for the expert evidence, which was subsequently supported by the findings of QCAT, to be departed from without a detailed explanation. Similarly, the explanation for rejecting Dr Vega Vega’s evidence before QCAT should also have been explained. Counsel for Dr Vega Vega also referred to a comment made by Dr Hoyle that he wanted to shake Dr Vega Vega up. Counsel for Dr Vega Vega also argues that Professor Marshall totally ignored the reasons of QCAT and they were a key part of Dr Vega Vega’s case as presented to the CR. It is argued that the failure of the doctors to consider and take into account the evidence of Dr Wood, as recorded in the reasons of QCAT, is a failure to take into account a relevant consideration and is sufficient to render the CR Report invalid. Consequently, the invalidity of the CR Report also means the HSI Report is invalid.