Weinstein v Medical Practitioners Board of Victoria

[2008] VSCA 193

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3771 of 2008

CYNTHIA WEINSTEIN

v

MEDICAL PRACTITIONERS BOARD OF VICTORIA

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JUDGES:	MAXWELL P, NEAVE and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 August 2008
DATE OF JUDGMENT:	30 September 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 193

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ADMINISTRATIVE LAW – Judicial review – Investigation by Board of complaints of unprofessional conduct – Board power to ‘inform itself in any way it thinks fit’ – Board made independent enquiry about qualifications of potential witness – Whether ultra vires – Whether conduct of Board created reasonable apprehension of bias – Nature of Board’s investigative function – Nature of panel hearing – Whether inquisitorial or adversarial – Medical Practitioners Act 1994 (Vic) Part 3.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P G Priest QC with Mr C Mylonas	Galbally Rolfe
For the Respondent	Ms F M McLeod SC with Mr A D Clements	Minter Ellison

MAXWELL P:

1. The appellant, Dr Weinstein, is under investigation by the respondent (‘the Board’) under the Medical Practice Act 1994.[1]  The Board determined to hold a formal hearing into Dr Weinstein’s professional conduct, as a result of six notifications received by the Board from patients of Dr Weinstein in the period August 2000 – August 2005.  As required by the Act, the Board appointed a panel to conduct the formal hearing.[2]

   [1]The Medical Practice Act was repealed with effect from 1 July 2007 and replaced by the Health Professions Registration Act2005.

   [2]Section 46(d).

1. In the course of the panel’s hearing, it emerged that the panel had carried out a ‘Google search’ of a particular person whose expert opinion is relevant to one aspect of the allegations against Dr Weinstein.  Following an unsuccessful attempt to have the panel disqualify itself on the ground of apprehended bias,[3] application was made on behalf of Dr Weinstein for an order in the nature of prohibition, or an injunction, to prevent the panel from continuing with the formal hearing, and a declaration that the panel was disqualified from continuing with the formal hearing. 

   [3]See [34]–[40] below.

1. On 1 May 2008, a judge of the Trial Division dismissed Dr Weinstein’s application.  By leave granted on 4 June 2008 by Neave JA and myself, Dr Weinstein now appeals against that decision.  For reasons which follow, I would dismiss the appeal.

The background circumstances

1. One of the particulars of alleged unprofessional conduct states:

In the period from 2004 until September 2005, [Dr Weinstein] breached infection control protocols and standards by re-using an instrument known as the Roll-CIT roller on different patients. 

The Roll-CIT roller is an instrument consisting of a handle and a rolling head which contains needles.  In a procedure called collagenesis, the Roll-CIT roller is rolled over the skin of a patient so that the needles partially penetrate the skin, producing some bleeding.  The object of the procedure is to prompt the body to produce collagen, thus improving the appearance and thickness of the affected skin.

1. The Roll-CIT roller is manufactured by a company called Environ.  Dr Des Fernandes is a principal of that company.  Evidence gathered by officers of the Board during the investigation of Dr Weinstein’s conduct included written communications from Dr Fernandes, stating that the Roll-CIT Roller was suitable for re-use but only on the same patient.   In an email of 23 August 2005, Dr Fernandes said:

The detachable handle is suitable for standard sterilization procedures, but the roller head with the embedded needles is not suitable for autoclaving.  It can be sterilized by gas or by soaking as many instruments are, however, I do not recommend that the instrument is used on another person, so while it may be re-sterilised it should only be used on one person.  It is actually printed on the packaging that the product is designed to be used on one person …

I am quite convinced that the roller is safe for re-use provided that it is not autoclaved, and of course that it is used always only on one individual.

Dr Fernandes later sent a scan of the outer covering of the packaging of the instrument, which stated:  ‘The product is designed to be used for one person only.’  Dr Fernandes confirmed that he had developed the instrument now sold as the Environ Roll-CIT.

1. On 18 April 2008, a medical practitioner formerly employed by Dr Weinstein gave evidence before the panel.  Under cross-examination by senior counsel for Dr Weinstein, the witness was asked whether he knew of the qualifications of Dr Fernandes.  The transcript records the following exchange:

Q:  Do you know of a Dr Fernandes?

A:  Yes, Dr Des Fernandes, yes.

Q:  That’s the one?

A:  I’m aware of him, yes.

Q:  What does he do?

A:  He’s a South African plastic surgeon who developed the concept of the smooth suture lift or thread lift and taught that procedure to Dr Bruce Fox, who introduced it to Australia.

Q:  You wouldn’t know this, Doctor, but we’ve seen some material in amongst these papers from Dr Des Fernandes in relation to the Roll-CITs, but you don’t know of his connection with respect to the Roll-CITs?

A:  Not that I’m aware of, no, I don’t know any.

Q:  Yes, thank you.

1. After re-examination by senior counsel assisting the panel, a member of the panel asked the witness the following questions:

Q:  Now, I think you said that you didn’t know much about Dr Fernandes, but you understood he was a plastic surgeon?

A:  Yes, he’s a plastic surgeon from South Africa.

Q:  Well, during the last interval we just checked on Google, so that’s a great source I must say, but it says that he went to England, and this is his website which hasn’t been updated since 2005, said he went to England to do plastic surgery but in fact did cardiothoracic surgery.  So he practises as a plastic surgeon, it sounds like though he hasn’t actually – I can’t add any further than that?

A:  That was my understanding, sorry.

Q:  You don’t know anything, yes.  So what was the basis of your understanding I suppose?

A:  Well, my understanding was that he was a plastic surgeon.

1. At this stage, counsel assisting intervened and said it would be useful ‘for the sake of fairness’ for Dr Weinstein’s representatives to know what had been the subject of the Google search.  The member then said ‘His name’.  Again at the suggestion of counsel assisting, the single web page viewed by the panel was later provided to Dr Weinstein’s representatives.  The page was headed ‘Dr Des Fernandes, Plastic and Reconstructive Surgeon’.  There followed a small entry headed ‘About me.’  The entry stated:

I qualified M.B; B.Ch. at the Witwatersrand University in 1966, worked in KwaZulu-Natal and went to the UK to specialise  as a plastic surgeon but ended up training at the London Heart Hospitals as a cardio-thoracic surgeon.  I became a fellow of the Edinburgh College of Surgeons in 1973 and came to Cape Town for a year to work with Prof Christiaan Barnard but ended up staying here and specialising in plastic surgery.

In 1979 I succeeded Dr David Davies as the head of the University of Cape Town’s Cleft Lip and Palate Unit at Red Cross War Memorial Hospital.  I held this position for 21 years and also joined David Davies in his Cosmetic private practice.

The entry then listed two publications: Esthetic Surgery of the Face and Esthetic Surgery of the Facial Mosaic.

1. Senior counsel for Dr Weinstein said that he was ‘very troubled’ by what had occurred.  He asked the panel to stand the matter down while he obtained instructions.  He said that the panel should not have been making inquiries behind the scenes without apprising Dr Weinstein and her counsel of what they were intending to do and giving them the results ‘chapter and verse.’  After the witness withdrew, senior counsel told the panel that what had occurred was ‘a very serious breach of the principles of natural justice and procedural fairness’.  He said that he would be taking instructions from Dr Weinstein as to whether or not she would be asking the panel to disqualify itself on the basis of ostensible bias.

1. After the lunch adjournment, and without first asking counsel for Dr Weinstein whether or not he would be proceeding to ask the panel to disqualify itself, the  Chair said that the panel had noted senior counsel’s concerns and had prepared ‘an explanation which we would like to give.’  The Chair read the following statement:

The panel’s Google search which was the subject of your concern only represented a reference into the qualifications and credentials of Des Fernandes which were uncertain to the panel up to that point.  The search was limited to the web page, the single web page of which you now have a copy.  It was noted and stated that Dr Fernandes’ original training was in cardiothoracic surgery but it was further noted and stated on the web page that the website confirmed his latest specialisation in plastic surgery which reassured the panel.  The information was offered openly and not withheld from counsel and given this the panel does not consider that Dr Weinstein’s hearing has been subject to procedural unfairness or her right to natural justice otherwise compromised.[4]

[4]Emphasis added.

1. Counsel responded that Dr Weinstein had again been denied procedural fairness because the panel had made a ruling without allowing him to make a submission about whether the panel should disqualify itself.  He said:

You have drawn the conclusion that there is no apprehended bias and no reason for the tribunal to recuse itself without hearing any submissions from me on the subject.

Senior counsel assisting said that the panel had not made a ruling but had ‘just said they did not consider there was procedural unfairness or [a denial of] natural justice.’  Counsel responded:  ‘Well, perhaps I’ve misunderstood.  Is that the position, Mr Chairman, may I ask?’  The Chair responded:  ‘The statement stands and we’re happy to hear your submission.’

The decision at first instance

1. Under s 49 of the Medical Practice Act, the hearing panel must ‘hear and determine the matter before it’.  The practitioner who is the subject of the hearing is entitled to be present, to make submissions and to be represented.  The procedure at the panel’s hearing is governed by s 52, which provides:

Procedure at formal and informal hearings

(1)       At a formal or informal hearing –

(a)  subject to this Part, the procedure of a panel is in its discretion;  and

(b) the proceedings must be conducted with as little formality and technicality as the requirements of this Act and the proper consideration of the matter permit;  and

(c)  the panel is not bound by the rules of evidence but may inform itself in any way it thinks fit;  and

(d) a panel is bound by the rules of natural justice.

1. The Board argued before the judge, and again on the appeal, that the power of the panel under s 52(1)(c) – to ‘inform itself in any way it thinks fit’ – authorised it to make its own independent enquiries so long as the results of those enquiries were provided to the practitioner and her representatives.  His Honour rejected this argument.  The relevant part of the reasons was in these terms:

In my opinion, the Act is clear that the function of the panel is to hear and determine the matter before it.  The function of the panel is not to make inquiries.

In my opinion, the tribunal failed to observe the proper procedures in hearing and determining the matter before it by conducting its own inquiries as to the professional qualifications and credentials of Dr Fernandes, upon whom counsel assisting the inquiry was placing reliance in establishing the professional misconduct alleged in item (q) under heading ‘Roll-CIT roller’.[5]

[5]Cynthia Weinstein v Medical Practitioners Board of Victoria [2008] VSC 149, [49]–[50].

1. Dr Weinstein’s principal argument before the judge, however, was that the conduct of the panel – in making its own investigation of Dr Fernandes and then in providing a pre-emptive ‘explanation’ of that step – gave rise to a reasonable apprehension of bias, such that the further conduct of the hearing by this panel would be a breach of natural justice.  His Honour rejected this argument – though only ‘after much reflection’ – and, for that reason, dismissed the application.[6] 

   [6]Ibid [66].

1. The questions for resolution on the appeal are as follows:

(a)       was the panel’s action in making its own inquiry into the credentials of Dr Fernandes outside the scope of the panel’s powers and, if so, what is the consequence of that unauthorised step having been taken?

(b)      did the panel’s conduct, in undertaking the Google search and subsequently, give rise to a reasonable apprehension of bias?

I deal with these issues in turn.

The nature of the panel’s function

1. The Board has two principal functions under the Act:  to register medical practitioners, and to investigate the performance of practitioners once registered.  Thus s 1(a) of the Act identifies as the first of ‘the main purposes of this Act’:  

[T]o protect the public by providing for the registration of medical practitioners and investigations into the professional conduct, professional performance and ability to practise of registered medical practitioners.

1. The Act is structured accordingly.  Part 2 of the Act is headed ‘Registration’ and deals with the machinery of registration.  Part 3 of the Act is headed ‘Investigations’ and deals with the machinery of investigation.  Part 3 begins with Division 1 – ‘Notifications and commencement of investigations’ – and ends with Division 4 – ‘General provisions relating to investigations’.  Division 4 includes the provisions which govern procedure at a formal hearing (s 52) and define the powers of a panel conducting a formal hearing (s 53).

1. The machinery of investigation begins with s 22 of the Act, under which a person may notify the Board about a matter relating to a registered medical practitioner

if the person believes [the matter] indicates that the medical practitioner may have engaged in unprofessional conduct …[7]

[7]Section 22(1)(b).

A notification of that kind triggers the Board’s duty to investigate under s 25 of the Act, which provides:

25. Commencement of investigations by the Board

(1) The Board must investigate a notification made

under section 22 if—

(a) the notification is not to be dealt with by the Health Services Commissioner under section 23;  and

(b) the Board has not determined the notification to be frivolous or vexatious.

(2) In order to determine whether or not it is necessary to conduct an informal or formal hearing or whether or not a performance review should be carried out, the Board must conduct a preliminary investigation into the notification.

…

(6)If the Board believes that a medical practitioner may have engaged in unprofessional conduct, the Board may, in writing, appoint one or more of the following –

(a)  an officer of the Board;

(b)  a lawyer or investigator retained by the Board;

(c)  a sub-committee of the Board consisting of not more than 3 members of the Board –

to conduct a preliminary investigation into the matter and delegate to the appointed person or the members of the sub-committee its power to conduct a preliminary investigation, other than its power to make determinations upon a preliminary investigation.

1. In the present case, so the Court was told, the Board conducted a preliminary investigation into the various notifications, as required by s 25(2), in order to determine whether or not it was necessary to conduct an informal or formal hearing.   The Board exercised the power conferred by subsection (6) to appoint an officer of the Board to conduct the preliminary investigation.  That preliminary investigation having been completed, the Board determined that a formal hearing be held;  appointed a panel to hold the hearing, as required by s 46;  and served a notice of hearing on Dr Weinstein in conformity with s 48.  That section provides:

48. Notice of a formal hearing

A notice of a formal hearing under section 46 must—

(a) state the nature of the hearing and the allegations made against the practitioner or student;  and

(b) give the time and place of the hearing;  and

(c) state that there is a right to make submissions and to be represented, that the hearing is open to the public, list the possible findings the panel can make and state that there is a right to apply for review of the panel's findings.

1. The conduct of the panel’s hearing was governed by s 49, the relevant parts of which provide as follows:

49. Conduct of a formal hearing

At a formal hearing—

(a)  the hearing panel must hear and determine the matter before it;  and

(b)  the practitioner or student who is the subject of the hearing is entitled to be present, to make submissions and to be represented.

1. As noted earlier, the panel’s procedure at a formal hearing is governed by s 52 of the Act, which relevantly provides:

52.    Procedure at formal and informal hearings

(1)       At a formal or informal hearing –

(a)  subject to this Part, the procedure of a panel is in its discretion;  and

(b) the proceedings must be conducted with as little formality and technicality as the requirements of this Act and the proper consideration of the matter permit;  and

(c)  the panel is not bound by the rules of evidence but may inform itself in any way it thinks fit;  and

(d) a panel is bound by the rules of natural justice.

1. Section 45A confers power on the panel, in a case such as the present, to impose sanctions on the practitioner, as follows:

45A.    Finding and determinations of a formal hearing into conduct

(1) After considering all the submissions made to a formal hearing into the professional conduct of a registered medical practitioner the panel may find that—

(a)   the practitioner has, whether by act or omission, engaged in unprofessional conduct of a serious nature;  or

(b)   the practitioner has, whether by act or omission, engaged in unprofessional conduct which is not of a serious nature;  or

(c)    the practitioner has not engaged in unprofessional conduct.

(2) If the panel finds that the practitioner has, whether by act or omission, engaged in unprofessional conduct of a serious nature, the panel may make one or more of the following determinations—

(a)   require the practitioner to undergo counselling;

(b)   caution the practitioner;

(c)    reprimand the practitioner;

(d)   require the practitioner to undertake and complete specified further education within a specified period;

(e)    impose any condition, limitation or restriction on the registration of the practitioner;

(f)    impose a fine on the practitioner of not more than $2000;

(g)   suspend the registration of the practitioner for the period specified in the determination;

(h)   cancel the registration of the practitioner;

(i)    disqualify the practitioner from applying for registration under section 5 within a specified period if the practitioner's registration is cancelled by the Board or by a medical registration authority of another State or Territory of the Commonwealth or of New Zealand.

1. Senior counsel for Dr Weinstein submitted that, taken as a whole, the provisions of Part 3 of the Act conferred two distinct functions on the Board in a case such as the present.  The first stage was investigative, the second adjudicative.  The first phase, he argued, was constituted by the preliminary investigation carried out in accordance with s 25(2).  The second stage was constituted by the panel’s formal hearing.  The panel, he contended, was carrying out ‘quasi-judicial functions’.  Just as a court would not make its own inquiry in the course of an inter partes hearing, so too did the character of the panel’s function preclude it from informing itself.  Senior counsel placed particular reliance on the power of the panel under s 45A to make ‘determinations’, arguing that a power so characterised was emblematic of a judicial or quasi-judicial function.  He also pointed out that the power of the panel to make a finding of unprofessional conduct under s 45A(1) was exercisable only ‘after considering all the submissions made to [the] formal hearing’. 

1. In my view, this submission should be rejected.  Rather than representing discrete functions of the Board, the preliminary investigation and the formal hearing are different stages in the investigation which the Board under s 25(1) is obliged to carry out.  As is apparent from the structure of the Act, and of Part 3 in particular, the conduct of a formal hearing is part of the investigative process.  A ‘determination’ by the panel to sanction the practitioner is the conclusion of the investigative process.  This conclusion accords with the terms in which the relevant function of the Board is conferred by s 66(1)(c) of the Act:

[T]o investigate the professional conduct, professional performance or ability to practise of registered medical practitioners and impose sanctions where necessary.[8]

[8]Emphasis added.

1. That the panel’s function is investigative is reinforced by s 53 of the Act, which provides:

53.      Powers of panel conducting a formal hearing

Sections 14, 15, 16 and 21A of the Evidence Act 1958 apply to a panel in the conduct of a formal hearing as if it were a Board or the Chairman of a Board appointed by the Governor in Council.

Those provisions of the Evidence Act confer power on boards and commissions of inquiry to summon persons to give evidence and/or to produce documents ‘material to the subject-matter of inquiry’.  By conferring these same powers on the panel, Parliament evidently intended that the panel be able, where necessary, to proceed of its own motion to summon and examine witnesses and require the production of documents.

1. To characterise the function of the panel as ‘judicial or quasi-judicial’ does not assist the analysis. That characterisation was only ever relevant to deciding whether the body in question was obliged to accord natural justice,[9] and it has long since ceased to be relevant to that issue.[10]  No such issue arises here, in any case, as the panel is under a statutory obligation to accord natural justice in the conduct of the formal hearing.

   [9]For example, Kitto J said in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475, 504 that ‘what the law requires in the discharge of a quasi-judicial function is judicial fairness …What is fair in a given situation depends upon the circumstances’.

   [10]Bread Manufacturers of NSW v Evans (1981) 180 CLR 404, 415-6 (Gibbs CJ).

1. In my view, there is nothing in the nature of the panel’s functions which would preclude it from making its own enquiries. On the contrary, the statute authorises the panel to do precisely that. As noted earlier, under s 52(1)(c) the panel ‘is not bound by rules of evidence but may inform itself in any way it thinks fit.’ When asked by the Court what content should be given to these words, senior counsel for Dr Weinstein submitted that they meant only that the panel was not bound by the rules of evidence, that is, they simply restated the first part of s 52(1)(c). Read in the context of the legislative scheme as a whole, he argued, the words ‘may inform itself in any way it thinks fit’ should be regarded as redundant. This was said to be the necessary consequence of the panel’s obligation under s 49(a) being to ‘hear and determine the matter before it’. In discharging that duty, so the submission went, the panel could not ‘go off finding things’.

1. Again, in my view, this submission fails.  The words ‘may inform itself …’ were plainly intended to have work to do.[11]  They have a meaning and a purpose quite distinct from the meaning and purpose of the words ‘not bound by rules of evidence’.  Far from the phrase ‘may inform itself’ being negated or neutralised by other provisions, these words play a necessary part in defining the character of the formal hearing which the panel conducts.  For the purposes of ‘determining the matter before it’, the panel is authorised to ‘inform itself in any way it thinks fit’ subject always to the overriding obligation to accord procedural fairness.[12]

   [11]Cf Project Blue Sky Inc v ABA (1998) 194 CLR 355, 382 [71] (McHugh, Gummow, Kirby and Hayne JJ).

   [12]As Weinberg JA pointed out in argument, an equivalent power is conferred on the Family Division of the Children’s Court:  Children Youth and Families Act 2005 (Vic) s 215(1)(d).

1. This conclusion accords with what was said by McInerney J when considering analogous provisions in Wajnberg v Raynor and Melbourne and Metropolitan Board of Works.[13]  The Town and Country Planning Appeals Tribunal likewise had power to ‘inform itself on any matter as it thinks fit’. The exercise of this power was expressly made ‘subject to the requirements of justice’.  His Honour said:

When it exercises its powers to ‘inform itself on any matter in such manner as it thinks fit’, ‘the requirements of justice’ to which that power is subject entail that the evidentiary material on which the tribunal acts should have been acquired in a fashion which takes account of the requirements of what may be termed natural justice.  The parties concerned should be informed of the material with which the tribunal proposes to inform its mind and they should be given the opportunity to make such submissions or adduce such countervailing evidence in respect thereto as may be appropriate.[14]

[13][1971] VR 665.

[14]Ibid 678–9.

1. By giving the panel power to inform itself  ‘in any way it thinks fit’, Parliament has clearly differentiated the panel’s conduct of a formal hearing from the judicial paradigm.  Whereas the judicial function is essentially passive – in the sense that the court relies on the adversarial parties to present the evidence and define the issues for decision – the panel’s work is thus stamped with an inquisitorial character.  As is emphasised by the conferral of the Evidence Act powers, the panel’s role as investigator is envisaged as being active, not passive.  As the Court noted in Macedon Ranges Shire Council v Romsey Hotel Pty Ltd,[15] the essence of inquisitorial adjudication

lies in the active participation of an impartial investigator from the earliest stages of the proceedings.  The investigator has primary responsibility for defining the issues and is able to supervise the gathering of evidence.

[15][2008] VSCA 45, [71] (Warren CJ, Maxwell P & Osborn AJA).

1. The engagement of counsel to assist the panel does not alter the inquisitorial character of the panel’s work.  Rather, counsel’s function is to assist the panel in carrying out its investigative work, always ensuring that the requirements of procedural fairness are observed.

1. As often happens in the course of a hearing, the question of Dr Fernandes’ position and qualifications had arisen in the course of the evidence.  The witness under cross-examination having been unable to speak with any confidence on that topic, it is unsurprising that the panel should have wanted to inform itself.  Where – as here – counsel is retained to assist the panel, it might have been preferable for the panel to request counsel assisting to obtain the necessary information, rather than making a private inquiry.  But that is a question of process, not power.

1. In the circumstances, the conduct of the panel in seeking to establish the qualifications of Dr Fernandes was but a modest exercise of the panel’s statutory power to inform itself.  The proposition that this was beyond the panel’s power is contrary to the express language of the statute and must be rejected.  It follows that I respectfully differ from the learned trial judge’s conclusion in this regard.

Was there a breach of natural justice?

1. It was conceded on behalf of Dr Weinstein that, in the events which happened, there was no breach of the hearing rule.  That is, the material obtained from the Google search having been disclosed to the representatives of Dr Weinstein, they had a reasonable opportunity to make such submissions as were appropriate in Dr Weinstein’s interests.

1. The complaint, instead, was that the panel had infringed the bias rule.  By making the Google search and then by its pre-emptive ‘explanation’, the panel had acted in such a way that

a fair-minded lay observer with knowledge of the material objective facts might entertain a reasonable apprehension that [the tribunal] might not bring an impartial and unprejudiced mind to the resolution of the question in issue.[16]

[16]Webb v R (1994) 181 CLR 41, 67 (Deane J). The appellant also relied on: Reg v Watson;  Ex parte Armstrong (1976) 136 CLR 248, 258–263 (Barwick CJ, Gibbs, Stephen and Mason JJ); Livesey v NSW Bar Association (1983) 151 CLR 288, 293–294, 300; Vakauta v Kelly (1989) 167 CLR 568, 572, 575 (Dawson J); Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 (Mason CJ and Brennan J) 81, 87 (Mason CJ and Brennan J) 96 (Deane J), 99–100 (Gaudron and McHugh JJ); Johnson v Johnson (2000) 201 CLR 488, 492 [11]; Antoun v R (2006) 224 ALR 51, [51] (Hayne J).

1. This complaint may be disposed of shortly.  The notional ‘fair-minded lay observer with knowledge of the objective facts’ must be taken to understand both the character of the panel’s function as investigator and the nature of the express power ‘to inform itself’ conferred by s 52(1)(c).  Once those matters were understood, the putative observer would have no reason whatever to doubt the impartiality of the panel in acting as it did.  The act of undertaking the Google search would be seen as an unexceptionable exercise of the panel’s power.  Indeed, the observer might well conclude that, since counsel for Dr Weinstein had raised the issue concerning Dr Fernandes, it was highly desirable that the panel should seek to resolve such uncertainty as remained after the cross-examination and, for that purpose, to exercise a power conferred on it for just such a purpose. 

1. Nor does the ‘explanation’ – or the stage at which the panel chair provided it – raise any question about the panel’s impartiality.  The panel merely made explicit what ought to have been readily apparent from the context, namely, that the panel had sought to satisfy itself about Dr Fernandes’ credentials.  Senior counsel for Dr Weinstein argued that it was not the mere making of the inquiry which created the apprehension of bias but the subject-matter of the inquiry and the possible purposes for which, inferentially, the inquiry was made.  The inquiry must have had one of two purposes, he submitted.  Either the inquiry was made in order to support the credit of Dr Fernandes, or it was made to destroy his credit.  When asked by the Court, senior counsel confirmed that it was in his client’s interests that the credibility of Dr Fernandes should be supported.  The concern at the time the inquiry was made, he said, was that the Google search might have revealed Dr Fernandes to be ‘a charlatan’. 

1. As I have already said, the panel’s purpose was benign – and entirely proper in the circumstances.  Had the search produced information which tended to undermine  Dr Fernandes’ credit, the panel would no doubt have drawn that to the attention of counsel for Dr Weinstein and invited submissions on the weight to be attached to the correspondence from Dr Fernandes.  In the event, of course, the panel did disclose the results of the search – promptly – in the course of the hearing.[17]  Consistently with that earlier disclosure, the chair of the panel said in the course of the ‘explanation’ that

the website confirmed [Dr Fernandes’] latest specialisation in plastic surgery which reassured the panel.

[17]See [8] above.

1. As Weinberg JA pointed out in the course of argument, the context left little room for doubt that the ‘reassurance’ to which the chair referred was of a positive nature.  That is, the panel were reassured that Dr Fernandes was a specialist plastic surgeon and, hence, to be treated as a person having relevant expertise.  As noted earlier, that was how those representing Dr Weinstein wished Dr Fernandes to be viewed by the panel.  Had her representatives had any concern that the word ‘reassured’ was ambiguous, or that some adverse material might have been discovered about Dr Fernandes but not disclosed, the obvious course was for counsel to raise the question then and there.  The fact that no such question was raised

strongly suggests that counsel for Dr Weinstein accepted that the panel’s ‘explanation’ meant what it said, that is, that the results of the search had confirmed the credibility of Dr Fernandes as an expert.

1. For these reasons, the bias argument also fails.

NEAVE JA:

1. I agree with Maxwell P, for the reasons that he gives, that s 52(1)(c) empowers the hearing panel to make its own enquiries.

1. I also agree with his Honour’s reasons for holding that the panel did not infringe the bias rule by undertaking a Google search to ascertain Dr Fernandes’ qualifications.

WEINBERG JA:

1. I agree, for the reasons given by the President, that the appeal should be dismissed.

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