XY v WA Country Health Service
[2016] WASC 202
•1 JULY 2016
XY -v- WA COUNTRY HEALTH SERVICE [2016] WASC 202
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 202 | |
| Case No: | CIV:1916/2016 | 27 JUNE 2016 | |
| Coram: | PRITCHARD J | 1/07/16 | |
| 30 | Judgment Part: | 1 of 1 | |
| Result: | Application for interlocutory injunction refused | ||
| B | |||
| PDF Version |
| Parties: | XY WA COUNTRY HEALTH SERVICE |
Catchwords: | Judicial review Procedural fairness Where plaintiff was obstetrician employed by defendant authority Where defendant had suspended plaintiff's clinical privileges and subsequently confirmed that decision Whether defendant denied plaintiff procedural fairness Where non-disclosure of documents Judicial review Li unreasonableness Whether decision to suspend clinical privileges was manifestly unreasonable Contract Where contract of employment contained express obligation to afford procedural fairness Whether implied term that defendant would act reasonably or in good faith Whether contract breached Whether public law standards may be used to give content to contractual obligation Whether standard for breach of contract and judicial review the same Interlocutory injunction Whether prima facie case of breach of procedural fairness Balance of convenience Whether damages adequate remedy Where expert medical assessment that plaintiff posed risked to patients Where harm to plaintiff was primarily financial Where evidence of financial difficulties was deficient in some respects |
Legislation: | Hospital and Health Services Act 1927 (WA) |
Case References: | Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 Bartlett v ANZ Banking Group Ltd [2016] NSWCA 30 Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 Braganza v BP Shipping Ltd [2015] UKSC 17 CPCF v Minister for immigration and Border Protection (2015) 89 ALJR 207 Kioa v West (1985) 159 CLR 550 Michael Christie v Agricultural Societies Council of NSW Ltd [2015] NSWSC 1118 Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 259 CLR 332 Mitchell v Royal New South Wales Canine Council Ltd (2001) NSWCA 162; (2001) 52 NSWLR 242 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 South Australia and Anor v Slipper (2004) 136 FCR 259 Warner-Lambert Co LCC v Apotex Pty Ltd [2014] FCAFC 59 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
WA COUNTRY HEALTH SERVICE
Defendant
Catchwords:
Judicial review - Procedural fairness - Where plaintiff was obstetrician employed by defendant authority - Where defendant had suspended plaintiff's clinical privileges and subsequently confirmed that decision - Whether defendant denied plaintiff procedural fairness - Where non-disclosure of documents
Judicial review - Li unreasonableness - Whether decision to suspend clinical privileges was manifestly unreasonable
Contract - Where contract of employment contained express obligation to afford procedural fairness - Whether implied term that defendant would act reasonably or in good faith - Whether contract breached - Whether public law standards may be used to give content to contractual obligation - Whether standard for breach of contract and judicial review the same
Interlocutory injunction - Whether prima facie case of breach of procedural fairness - Balance of convenience - Whether damages adequate remedy - Where expert medical assessment that plaintiff posed risked to patients - Where harm to plaintiff was primarily financial - Where evidence of financial difficulties was deficient in some respects
Legislation:
Hospital and Health Services Act 1927 (WA)
Result:
Application for interlocutory injunction refused
Category: B
Representation:
Counsel:
Plaintiff : Mr M G Pendlebury
Defendant : Ms C J Thatcher
Solicitors:
Plaintiff : Panetta McGrath Lawyers
Defendant : State Solicitor's Office
Cases referred to in judgment:
Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Bartlett v ANZ Banking Group Ltd [2016] NSWCA 30
Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618
Braganza v BP Shipping Ltd [2015] UKSC 17
CPCF v Minister for immigration and Border Protection (2015) 89 ALJR 207
Kioa v West (1985) 159 CLR 550
Michael Christie v Agricultural Societies Council of NSW Ltd [2015] NSWSC 1118
Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 259 CLR 332
Mitchell v Royal New South Wales Canine Council Ltd (2001) NSWCA 162; (2001) 52 NSWLR 242
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238
South Australia and Anor v Slipper (2004) 136 FCR 259
Warner-Lambert Co LCC v Apotex Pty Ltd [2014] FCAFC 59
Table of Contents
1. Principles in relation to the grant of an interlocutory injunction 7
2. The decisions the subject of challenge in the present action 8
The affidavit evidence 8
The evidence in relation to the Incident 8
3. The contract by which the plaintiff was engaged to provide medical services 10
The first suspension decision 13
The second suspension decision 14
The third suspension decision 17
Alleged failure to provide the plaintiff with documents 19
The investigation 20
4. The strength of the plaintiff's case - whether there exists a prima facie case 21
The plaintiff's case 21
Assessing the strength of the plaintiff's case 22
The plaintiff's claims that the suspension decisions were unreasonable 23
The claims based on a denial of procedural fairness 26
5. Balance of convenience considerations 28
6. Whether injunctive relief should be granted 30
1 PRITCHARD J: The plaintiff is a medical practitioner. The defendant is the board of a hospital in regional Western Australia (the hospital), which is constituted as a hospital board under the Hospital and Health Services Act 1927 (WA).
2 These reasons have been anonymised, consistent with orders I have already made to restrict the publication or disclosure of details which may identify, or lead to the identification of, the plaintiff and a patient involved in an incident at the hospital on 22 January 2016. I have anonymised these reasons with the intention that they will be able to be published, so as to preserve, to the greatest extent possible, the principle of open justice and transparency in the Court's decisions. However, I will hear from the parties on the question of the publication of these reasons in due course.
3 Since December 2013 the plaintiff has been engaged by the defendant to provide certain medical services to public and private patients at the hospital. The scope of the medical services which the plaintiff is permitted to provide at the hospital are known as clinical privileges. The terms on which the plaintiff is engaged to provide those clinical privileges at the hospital are set out in a contract known as a Medical Services Agreement (MSA) between the plaintiff and the defendant.
4 The plaintiff is presently undertaking specialist training as an obstetrician. Her clinical privileges at the hospital were determined by what is known as a credentialing process, by which doctors are authorised to carry out medical procedures at particular levels of certification. On 15 January 2016, the plaintiff had been re-credentialed in respect of basic hospital admissions, which permitted her to admit, treat and discharge obstetric patients at the level of a basic certification.
5 Until 22 January 2016, the plaintiff's clinical privileges at the hospital included accreditation to perform the surgical termination of pregnancies within the first trimester (that is, where the gestational age of the foetus does not exceed 12 weeks).
6 On 22 January 2016, the plaintiff's clinical privileges were suspended by Dr R, on behalf of the defendant, following an incident in the hospital's operating theatre, involving the plaintiff, earlier that day (the Incident). I will refer to that decision as the first suspension decision.
7 The suspension of the plaintiff's clinical privileges has been confirmed, or continued, by two subsequent decisions, which appear to have been made on behalf of the defendant: a decision made by Dr B on 12 February 2016 (the second suspension decision), and a decision made by the Director General of the Health Department on 17 May 2016 (the third suspension decision).
8 In each case, the plaintiff's clinical privileges have been suspended pending the outcome of an investigation into the Incident. For reasons which are far from clear, the investigation has not yet been completed. The suspension of the plaintiff's clinical privileges has had the result that she is unable to provide any medical services at the hospital, with the result that the plaintiff claims to have suffered a significant financial detriment.
9 The plaintiff has commenced an action in this Court seeking to have each of the suspension decisions declared to be invalid and in breach of the MSA, a permanent injunction to restrain the defendant from giving effect to each of the suspension decisions, and damages for breach of contract (that is, breach of the MSA). That action is in its early stages. An Amended Statement of Claim has been filed, but no defence has yet been filed.
10 The plaintiff now applies for the grant of an interlocutory injunction, on an urgent basis, to restrain the defendant, until trial or further order of the Court, from giving effect to each of the suspension decisions. She also sought an order prohibiting the disclosure of the evidence, pleadings and submissions to third parties, other than the legal representatives of the parties and experts retained by the parties to give expert evidence at the trial (the Application).
11 I heard the Application on 27 June 2016. It was vigorously pursued and defended, and the hearing took a full day.
12 For the reasons outlined below, I have reached the conclusion that the Application for an interlocutory injunction should be refused.
13 In these reasons, I deal with the following matters:
1. Principles in relation to the grant of an interlocutory injunction;
2. The decisions the subject of challenge in the present action;
3. The contract by which the plaintiff was engaged to provide medical services;
4. The strength of the plaintiff's case - whether there exists a prima facie case;
5. Whether the balance of convenience favours the granting of the injunction; and
6. Whether injunctive relief should be granted.
1. Principles in relation to the grant of an interlocutory injunction
14 The principles in relation to the grant of interlocutory injunctive relief are well established. They were recently set out by Newnes JA in Mineralogy Pty Ltd v Sino Iron Pty Ltd1where his Honour (with whom Corboy J agreed) said:
The two main enquiries that arise are whether the plaintiff has made out a prima facie case and whether the balance of convenience favours the grant of the injunction. The first inquiry as to a 'prima facie case' does not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed. It is sufficient that the plaintiff show a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending the trial. How strong the probability needs to be depends upon the nature of the rights the plaintiff asserts and the practical consequences likely to flow from the orders the plaintiff seeks. The second inquiry is whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs, or is outweighed by, the injury which the defendant would suffer if an injunction was granted: Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618; Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57. Whether an applicant for an interlocutory injunction has made out a sufficient prima facie case and whether the balance of convenience favours the grant of such relief are related, not independent, questions: Warner-Lambert Co LCC v Apotex Pty Ltd [2014] FCAFC 59 [70].
- As Newnes JA also pointed out:2
It is clear that on an application for an interlocutory injunction the court does not 'undertake a preliminary trial, and give or withhold interlocutory relief upon a forecast as to the ultimate result of the case': Beecham, 622. But it is necessary for an assessment to be made of the strength of the plaintiff's probability of ultimate success. It is plain from the test described in Beecham and O'Neill that the plaintiff's probability of success at trial is a critical factor in the determination of such an application. In that respect, as the Full Court of the Federal Court observed in Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 [59], it is not enough simply to conclude that the plaintiff has a 'prima facie' case. What is required is an assessment or evaluation of the case for the purpose of deciding whether the plaintiff has made out a prima facie case of sufficient strength to justify the grant of an interlocutory injunction and to enable the strength of the case to be taken into account in an assessment of the balance of convenience and justice: Samsung [87] - [88].
2. The decisions the subject of challenge in the present action
The affidavit evidence
16 Counsel for the plaintiff read six affidavits in support of the Application: an affidavit sworn by the plaintiff on 11 May 2016; an affidavit sworn by the plaintiff on 22 June 2016; an affidavit of the plaintiff's solicitor, Mr Enore Antonio Panetta sworn on 2 June 2016, a supplementary affidavit sworn by Mr Panetta on 21 June 2016, an affidavit of Dr T sworn on 12 May 2016 and an affidavit of Dr R sworn on 2 June 2016.
17 Counsel for the defendant read three affidavits: an affidavit of Ms G, an employee at the hospital, affirmed on 16 June 2016, an affidavit of Dr B sworn on 22 June 2016, and an affidavit of Dr C affirmed on 20 June 2016.
18 The factual background set out below is drawn from the affidavits and I have identified the source of that information. None of the evidence has been tested, and I make no findings about the facts which are, or may be, in dispute.
The evidence in relation to the Incident
19 The plaintiff deposed that on 19 January 2016, a patient (the Patient) was referred to her by a general practitioner. The Patient was pregnant, and she was referred to the plaintiff because she wished to terminate the pregnancy. The general practitioner's letter of referral indicated that the Patient was seven to eight weeks pregnant, and a pathology report which accompanied that letter indicated that the presence of the human chorionic gonadotropin (hCG) hormone in the Patient's blood was at a level consistent with that estimated gestational age.
20 The plaintiff says she saw the patient and the Patient's partner in her rooms on 19 January 2016. The plaintiff deposed that she had an extensive and lengthy discussion with them, including a discussion of the Patient's medical history and of their wish to terminate the pregnancy.
21 The plaintiff deposed that ordinarily, prior to making arrangements for a termination, she would perform an ultrasound examination. She has ultrasound equipment at her clinic. The plaintiff deposed that she decided not to undertake an ultrasound on 19 January 2016 because the Patient suffered from a physical disability, and was obese, and the plaintiff was concerned that the Patient would be at undue risk of injuring herself if she had to climb up onto the examination table in the plaintiff's rooms. She also deposed that she intended to undertake a manual examination of the plaintiff once she was anaesthetised (that is, at the time of the surgical termination procedure).
22 The plaintiff then made arrangements for a surgical termination of the pregnancy to be undertaken at the hospital. She deposed that she discovered that there was likely to be a delay in doing so if the procedure were not booked in before 22 January 2016, so she booked the operating theatre for that date.
23 On 22 January 2016, the Patient was prepared for surgery and given a general anaesthetic. The plaintiff deposed that there was a team meeting involving the attending doctors and nursing staff and no concerns were raised about proceeding with the termination.
24 The plaintiff deposed that 'as is my normal process when conducting such procedures, I then performed a bimanual pelvic examination' at which point it became apparent to her that the Patient was much further advanced in her pregnancy than the plaintiff had understood to be the case. At that point, the plaintiff obtained an ultrasound machine and conducted an ultrasound examination of the Patient, as a result of which she formed the view that the Patient was approximately 24 to 25 weeks pregnant. The plaintiff did not proceed with the termination, and the Patient was awoken from the anaesthetic. (The Patient continued the pregnancy and subsequently delivered a healthy baby.)
25 The plaintiff deposed that while she was waiting for the ultrasound machine to be brought into the theatre, one of the theatre nurses advised her that another nurse, who had observed the Patient putting on the theatre gown, told her that she thought the Patient's pregnancy was further advanced than 8 weeks. The plaintiff deposed that no one had provided that information to her, or expressed any concern about the duration of the Patient's pregnancy, prior to the plaintiff's manual examination of the Patient.
26 The plaintiff's clinical privileges did not include authorisation to conduct the termination of pregnancies beyond the first trimester.
27 Before proceeding to consider the balance of the factual matters giving rise to this action, it is convenient to mention the process by which an incident of the present kind may be investigated, and the MSA, which incorporates that process.
3. The contract by which the plaintiff was engaged to provide medical services
28 Pursuant to the MSA, the defendant engaged the plaintiff to provide medical services between 1 December 2013 and 30 November 2017, on the terms and conditions set out in the MSA. By cl 5.5 of the MSA, the plaintiff agreed that the defendant could (amongst other things) vary, suspend or terminate her clinical privileges, in accordance with conditions known as the 'Clinical Privileges Conditions' and in accordance with the Memorandum of Understanding (the MOU).
29 Under cl 5.2 of the MSA, the plaintiff was required to nominate a medical practitioner for clinical privileges to perform medical services under the MSA. The plaintiff nominated herself as that medical practitioner. Under cl 5.3, the defendant is, subject to the MOU, to approve or reject applications for clinical privileges. The clinical privileges conditions appear to be those set out in sch 1A to the MSA (under the somewhat misleading heading 'Nominated Medical Practitioner Conditions'). Clause 5(e) of those conditions provides that:
Subject to the MOU, the [defendant] may restrict, make conditional, vary, suspend or terminate Clinical Privileges if you [ie the plaintiff] amongst other things:
(1) Engage in serious or wilful misconduct; or
(2) Present a risk to the safety and well being of hospital patients or staff; or
(3) otherwise depart from generally accepted standards of medical practice in your conduct … .
30 Furthermore, cl 5(f) of the Nominated Medical Practitioner Conditions provides that:
Notwithstanding sub-clause (e), but again subject to the MOU, the [defendant] may, pending a review, immediately restrict, make conditional, vary or suspend (but not terminate) Clinical Privileges if, in the opinion of the [defendant] based on the information available to it, any breach specified in sub-clause (e)(1), (2) or (3) warrants such a decision.
31 The MOU is a document entered into in 2015 by the Minister for Health, the Director General of Health, the Boards of Management of various hospitals, and the Australian Medical Association (the AMA), in respect of clinical privileges, conduct and governance in Western Australian government hospitals and health services. The MOU provides that it does not of itself create legally binding obligations and is not legally enforceable, but compliance with relevant parts of the MOU is contemplated by the provisions of the MSA to which I have referred above.
32 Clause 5 of the MOU deals with 'Review of Clinical Conduct'. That clause recognises that Boards of hospitals have a duty of care to patients and must be able to review the conduct of medical practitioners, and the clause sets out a process by which a review of the clinical conduct of a medical practitioner may occur.
33 Matters concerning a practitioner's conduct are first directed to the Director of Medical Services in a hospital to conduct an informal review with a nominee of a medical advisory committee appointed for such purpose. After consideration and review, the Director of Medical Services will, if the matter justifies it, forward the matter to the Board of the hospital for consideration. After considering the seriousness and urgency of the relevant issues, the Board can take a number of different courses of action. Where the Board has satisfied itself that the matter is prima facie serious, the Board may initiate a review of the practitioner's conduct by written request, and may constitute a Conduct Review Panel for that purpose (Panel). (The Conduct Review Panel comprises the Director of Medical Services, a person nominated by the Director General of Health, and an independent medical practitioner nominated by the AMA.)
34 The Panel is required to consider a request for a review within seven days, or as soon as reasonably practicable, and to form an opinion as to whether the subject matter of the requested review is prima facie serious. If so, the Panel must report to the board its finding and recommendations, or advise the board that further consideration by the Panel is required, or recommend immediate restrictions, variations or suspension of the practitioner's clinical privileges.3 At any time during its consideration, the Panel may recommend that the board of a hospital appoint an investigator or a mediator.4
35 The Panel, and any investigator appointed by a hospital board, is to consider such matters as it thinks fit, including whether the alleged conduct of the practitioner departs or appears to depart from generally accepted standards of medical practice, and if so, to what extent; whether the alleged conduct is or appears to be an isolated occurrence; and if applicable, any adverse health outcomes for the patient concerned.5
36 The Panel is expressly required to 'afford procedural fairness to all persons, but may proceed with a Review if documents or information are not provided within time limits specified,'6 must 'inform the Medical Practitioner the subject of the Review of the substance of the material relating to the Review, and details of the Review process,7 and give the Medical Practitioner 'an adequate opportunity to put materials and submissions' to the Panel before preparing its written report.8 That report must set out its conclusions, its reasons for reaching those conclusions and the materials provided to it, and relied upon, in reaching its conclusions.9
37 Notwithstanding the findings and recommendation of the Panel, the board of a hospital may exercise a range of powers, including to dismiss the matter; to reprimand the person; and to restrict, make conditional, vary, suspend, terminate or reinstate a medical practitioner's clinical privileges.10 A medical practitioner who is aggrieved by a determination of a board may, within seven days, appeal to the Medical Appeals Panel.11
38 The MOU also provides that a hospital board may at any time decide that the conduct of a medical practitioner warrants restricting, varying or suspending the clinical privileges of that medical practitioner, pending a review. In such a case, the Board is required to immediately notify the medical practitioner of its decision, and, whether or not a review has already been initiated, refer its decision to the Panel for further consideration within seven days.12 (If a review has not already been initiated, such a reference will initiate a review.)
39 In that case, the Panel is to, within three days or as soon as reasonably practicable, consider the board's decision and immediately report to the board its opinion as to whether the decision should stand, be amended, be rescinded or whether any other action is necessary.13
40 The MOU contemplates that the processes outlined in the MOU will be completed within particular time periods, including 70 days for the completion of a review, by which time the board will notify the relevant medical practitioner of the determination made as a result of the review.14 The MOU also acknowledges that the parties will try to complete a review as quickly as possible, but makes clear that that flexibility does not apply to the time limit imposed for appeals to the Medical Appeals Panel, or the time limit for the Panel to consider a decision of the board at any time to restrict, make conditional, vary or suspend a practitioner's clinical privileges.15
The first suspension decision
41 The plaintiff deposed that late in the afternoon on 22 January 2016, she telephoned Dr M, who was acting in a senior management position at the hospital. The plaintiff deposed that in the course of that conversation, Dr M told her that the Incident would be investigated and her clinical privileges would be suspended while that investigation was carried out. The plaintiff deposed that the reason given by Dr M for her suspension was that Dr M, Dr R and another doctor had assessed the Incident as a 'SAC 1 incident', which was a reference to the clinical severity of the incident. Shortly after their discussion, Dr M sent an email confirming the first suspension decision. (The plaintiff was subsequently advised that the first suspension decision was not in fact made by Dr M, but had been made by Dr R.)
42 The plaintiff deposed that a few days after being advised of the first suspension decision, the plaintiff discovered that Dr M had sent an email to her during the morning of 22 January 2016, requesting that the plaintiff provide 'as soon as possible' certain information, including how she had determined the Patient's gestation, whether the plaintiff had discussed the Patient with anyone else prior to taking her into the operating theatre, and whether the Patient had given her consent to the termination. The plaintiff deposed that she did not see that email on 22 January 2016.
43 The plaintiff deposed that at no time prior to the first suspension decision did Dr M or anyone else discuss with her whether she booked the termination knowing or suspecting that the pregnancy was one of 24 weeks' duration; whether she had intended to conduct a manual examination of the Patient once she was anaesthetised; why Dr M believed that the Incident amounted to a serious risk to a patient; whether any or all of her clinical privileges should be suspended or whether there was a more appropriate response than suspension; whether the plaintiff's conduct could be considered a significant, or any, risk to patients she would be likely to treat at the hospital; or the information which Dr M or Dr R considered relevant to the question of whether her clinical privileges should be suspended.
The second suspension decision
44 The plaintiff deposed that on 2 February 2016, she was contacted by Dr B, who occupies a senior position within the administration of the defendant. She deposed that Dr B requested a meeting so the plaintiff could 'walk' him through the events and circumstances surrounding the Incident. The plaintiff initially agreed, on the basis that her solicitors would attend the meeting by telephone. Later, it appeared to the plaintiff that the meeting would not simply be an informal discussion (as she has originally anticipated), and the plaintiff decided that she wanted her lawyers to be physically present during the meeting. The plaintiff deposed that she cancelled the meeting and advised Dr B that she would provide a written report on the Incident within 14 days of being provided with the hospital's records in relation to the treatment of the Patient in the Incident, and a copy of the policy under which the hospital was conducting the investigation into the Incident.
45 It appears that around the same time, the plaintiff's solicitors had written to the hospital setting out information in relation to the circumstances surrounding the Incident. A copy of that letter was not in evidence.
46 On 10 February 2016, Dr B sent the plaintiff a letter headed 'SAC 1 Investigation'. In that letter, he set out the information with which he had been provided in relation to the Incident, most of which appears to be consistent with the plaintiff's version of events as outlined above. Dr B advised that one aspect of the investigation into the Incident included a 'Severity Assessment Code (SAC 1) review' which pertained to events 'described as a serious "near miss that could have resulted in serious harm or death".'16 Dr B advised that the time frame for that investigation would normally be approximately 28 days. Dr B requested that the plaintiff either reschedule a meeting with him, or confirm that the circumstances set out in the correspondence he had received from her solicitors was an accurate summary of the events. He advised that if he did not receive a response from the plaintiff by 18 February 2016 he would assume that her solicitors' summary of the events was an accurate statement.
47 It appears that Dr B's letter of 10 February 2016 was concerned solely with a discrete aspect of the investigations which were to be conducted into the Incident, namely, that which focused on the fact that this was an incident assessed at SAC 1, rather than to the entirety of the investigation being undertaken by the defendant into the Incident. That that was so was confirmed by a letter from Dr B to the plaintiff's solicitors dated 12 February 2016. In that letter Dr B advised that 'the SAC 1 investigation is a completely separate matter to the suspension of your client's clinical privileges and the review of her clinical conduct'.17
48 On 12 February 2016, Dr B wrote a letter to the plaintiff headed 'Suspension of Clinical Privileges and Review of Clinical Conduct'. In this letter, Dr B referred to the plaintiff's conversation with Dr M on 22 January 2016, and set out the 'key events' in relation to the Incident. It is apparent from the matters Dr B set out that the source of some of that information must have been the plaintiff herself (for example, Dr B referred to the fact that 'despite your protocol of waiting 7 days' to book in a termination, after an initial appointment with a patient, the plaintiff booked the patient in for 22 January 2016). However, one factor to which Dr B referred appears to be inconsistent with the plaintiff's version of events, as set out above, namely that 'after the patient was already anaesthetized, a nurse informed you that she suspected the pregnancy was more advanced than eight weeks, after which you conducted a pelvic examination of the patient, which confirmed that view'18 (emphasis added).
49 Dr B noted that Dr M had informed the plaintiff of the suspension of her clinical privileges and he then stated: 'I now confirm that suspension in writing, under cl 5(f) of sch 1A of [the MSA]'.19 This is the decision referred to as the second suspension decision.
50 Dr B then set out the reason for that decision:20
The reason for the immediate suspension of your clinical privileges is that you have allegedly departed from generally accepted standards of medical practice in your conduct, and present a risk to the safety and wellbeing of patients, in that you failed to physically examine your patient or arrange for an ultrasound to confirm gestation prior to scheduling a surgical termination of pregnancy for a woman who was over 24 weeks pregnant.
51 Dr B then advised that he had instigated 'a review of your clinical conduct in this matter' under cl 5 of the 'Memorandum of Understanding between the Minister for Health, the Director General of Health and Boards of Management and the Australian Medical Association (Western Australia) Incorporated in respect of Clinical Privileges, Conduct and Governance in Western Australian Government Hospitals and Health Services 2015' (the MOU). He invited the plaintiff to prepare a written response in relation to the Incident by 19 February 2016, and advised that following consideration of that response, a decision would be made as to whether a Panel should be initiated, and that her suspension would be reviewed by the Panel in accordance with the MOU. In his letter to the plaintiff's solicitors of 12 February 2016, Dr B noted that there was 'no formal timescale for the review' of the plaintiff's clinical conduct but agreed that 'it is in everyone's interests to proceed as soon as practicable'.21
52 The plaintiff deposed that at no stage prior to the second suspension decision had Dr B, or any other representative of the defendant, informed her of the intention to confirm the first suspension decision; informed her that the facts relied upon for the suspension decision included that she may not have been intending to conduct a manual examination prior to commencing the termination procedure; and that she had not been given the opportunity to be heard on whether she presented a risk to the safety and wellbeing of patients, whether her conduct on 22 January 2016 could be regarded as constituting a risk to other patients, whether any or all of her clinical privileges should be suspended, and whether there was a more appropriate response apart from suspension of her clinical privileges.
53 On 18 February 2016, the plaintiff sent two letters to Dr B - a response in relation to the SAC 1 investigation, and a response in relation to the review of her clinical conduct.
The third suspension decision
54 On 29 April 2016, the Chief Executive Officer (CEO) of the defendant advised the plaintiff that as required by the MOU, a Panel was being established to review her clinical conduct at the hospital. The CEO advised that the Director General had done so because:
following review of the case, the Director General is satisfied, as the delegate of the Board, that your clinical conduct:22
• Presented a risk to the safety and wellbeing of … hospital patients; and
• Otherwise departed from generally accepted standards of medical practice.
55 On 4 May 2016, the plaintiff was advised that the Panel had been convened. The Terms of Reference for the Panel were provided to the plaintiff.
56 On 11 May 2016, the plaintiff was advised that the Panel would consider the continuation of the suspension of the plaintiff's clinical privileges on 16 May 2016, as this was the first occasion on which the Panel was able to meet to consider that question. The plaintiff was invited to provide written submissions by 13 May 2016.
57 On 13 May 2016, the plaintiff's solicitors wrote to the Director General enclosing a written submission by the plaintiff. It was a detailed submission which ran to 23 pages in length, in which the plaintiff set out what had occurred in the Incident, and her claims in relation to the impact of the suspension on her in the loss of income, and in the harm to her reputation. She also submitted that she had been denied procedural fairness in respect of the first and second suspension decisions.
58 At the same time, the plaintiff's solicitors also advised that each of the plaintiff's three supervisors for her specialist training were of the view that they did not believe that the plaintiff's conduct in question would be repeated in the future, and that each of them was of the view that there would be no risk to patients if her clinical privileges were restored, or, alternatively, if she were permitted to undertake low risk antenatal care and deliveries or minor gynaecological procedures.
59 On 17 May 2016, the Chairman of the Panel wrote to the plaintiff and advised that the Panel met on 16 May 2016, concluded that the matter was serious enough to warrant further investigation, that an investigator should be appointed (in accordance with the requirements of the MOU) and that the plaintiff would be given the opportunity to provide submissions in the course of that investigation. The Chairman then stated:23
Regarding the suspension of your clinical privileges, the Panel is of the opinion that based on the information provided, your submissions and concerns related to the clinical incident, and your ongoing relationship with other staff, there is insufficient evidence to support reinstating your clinical privileges at [the hospital] at this time.
This recommendation has been endorsed by the Director General as the delegate of the Board. Therefore your clinical privileges will remain suspended until the Panel is able to consider further information provided by the investigator.
60 That was the third suspension decision.
61 The plaintiff's case is that at no stage prior to the third suspension decision was she informed that her ongoing relationship with staff was an issue which the Panel considered relevant to the reinstatement of her clinical privileges, nor was she advised or of the particular aspects of those relationships that the Panel considered relevant to their review of the suspension of her clinical privileges, nor was she given an opportunity to be heard in relation to those matters.
62 After complaints from the plaintiff's solicitors, the Director General wrote to the plaintiff's solicitors advising that the Panel was not bound by the rules of evidence and could take into account information regarding the plaintiff's ongoing relationship with other staff when deciding whether the suspension should stand while the plaintiff's clinical conduct was reviewed. He also advised that:24
[r]eferences and information provided in [the plaintiff's] application for re-credentialing [that is, her application for the renewal of her clinical privileges which had occurred prior to the suspension of those privileges] were referred to in the Panel coming to its conclusion that the suspension should stand while her clinical conduct is under review.
63 The plaintiff's solicitor deposed that on 31 May 2016 he spoke to one of the defendant's solicitors and enquired whether there was any basis on which the defendant would permit the plaintiff to resume working at the hospital. He deposed that he was told that 'it had been considered that the alleged conduct … was serious enough to warrant the continued interim suspension'.25
64 On 30 May 2016, the plaintiff's solicitors again wrote to the Director General expressing the view that the suspension decisions were void because they were made after a denial of procedural fairness, and were manifestly unreasonable, and invited him to lift the suspension.
65 On 1 June 2016, the Director General wrote to the plaintiff's solicitors to advise:26
I have considered your request to lift the suspension of your client's clinical privileges and I have reviewed the matter again. Given that no additional facts have been brought to my attention, it is my view that there is not a sufficient reason to overrule the Panel's preliminary recommendation at this point.
I feel it is prudent to allow the Panel to finalise their review of the clinical conduct before any further review of the suspension is made.
66 Strictly speaking, this perhaps constituted a further (fourth) decision to suspend the plaintiff's clinical privileges, but for present purposes, I have treated it as part and parcel of the third suspension decision (as the parties appear to have done).
Alleged failure to provide the plaintiff with documents
67 The plaintiff deposed that under cover of a letter dated 27 May 2016, which her solicitors received on 8 June 2016, the Chairman of the Panel provided a copy of the documents which had been provided to the Panel for consideration at their meeting on 16 May 2016 (the Documents). The plaintiff says that at no stage prior to 8 June 2016 were the Documents provided to her, nor was she given an opportunity to be heard in relation to the content of those Documents.
68 The plaintiff deposed that the Documents included letters written to the defendant in late 2015, by doctors at the hospital or of the defendant's staff, apparently in relation to her most recent application for the renewal of her credentials in late 2015. Those letters raised a number of very serious concerns about the plaintiff's clinical decision making, her relationships with other staff, and the long term safety of patients under her care. The plaintiff denies all of those concerns and deposed that those matters had never been raised with her previously.
69 The Documents also included a series of emails passing between senior doctors at the hospital on 22 January 2016, in relation to the Incident, which sets out some information, including possible explanations for the Incident, which may have been taken into account when the first suspension decision was made. The plaintiff deposed that she had not been provided with a copy of those emails prior to 8 June 2016.
70 Finally, one of the Documents, dated 18 March 2016, appears to contain comments provided by a doctor at the hospital on the plaintiff's written response to the Incident. Amongst other things, that document suggested that the plaintiff's response 'does not demonstrate any insight into the uncertainty regarding gestation ascertainment … this indicates a basic knowledge deficit with respect to pregnancy dating procedure' and that the plaintiff's 'lack of expressed insight in retrospect that her decision making [in relation to the Incident] was unwise must raise questions about her capacity to learn from experience'.27 The plaintiff disputes this assessment, and again deposed that she had not seen that report prior to 8 June 2016.
The investigation
71 As I have already mentioned, the Panel met on 16 May 2016. Ms G attended that meeting, and a copy of the minutes of that meeting were attached to her affidavit. The minutes record that the Panel noted that 'basic clinical errors have been made - not examining patient prior to booking surgery, reliance on hCG levels to determine gestation age, reliance on patient report' and that while there was:28
agreement that whilst this is indeed a very serious incident that resulted in suspension of [the plaintiff's] clinical privileges, there was an acknowledgment that on its own this would normally not be enough to constitute a Panel. Therefore [the] Panel require the further information related to the clinical incident, [the plaintiff's] clinical conduct and behaviour to make a final determination.
72 It was noted that that additional information would include, amongst other things, further information related to the plaintiff's interaction and relationships with other staff.
73 Ms G deposed that an investigator has been appointed to conduct an investigation for the Panel, that interviews were due to be conducted in June 2016, and that a second meeting of the Panel is tentatively scheduled for 19 July 2016, at which it was intended that the Panel would consider the investigator's report and any further submissions which the plaintiff intends to make.
4. The strength of the plaintiff's case - whether there exists a prima facie case
The plaintiff's case
74 The plaintiff challenges the validity of each of the first, second and third suspension decisions, on the basis that on each occasion when the defendant (acting through its officers) decided whether to exercise the power to suspend the plaintiff, the defendant was obliged to afford procedural fairness to the plaintiff, and failed to do so.
75 The plaintiff also claims that it was an express, or alternatively an implied, requirement of the MSA that the defendant would afford procedural fairness to the plaintiff when it considered whether to suspend her clinical privileges pending an investigation into her conduct in relation to the Incident. The plaintiff's case is that the failure to afford procedural fairness therefore constituted a breach of contract, which has caused the plaintiff loss, and for which the defendant is liable to pay damages.
76 The plaintiff also claims that it was an implied term of the MSA that when deciding whether to suspend the clinical privileges of the plaintiff, the defendant would act reasonably, or alternatively in good faith, and would only take into account such of the plaintiff's conduct that sufficiently related to the question of whether her conduct was such as to present a risk to the safety and wellbeing of patients at the hospital, or was conduct which otherwise departed from generally accepted standards of medical practice. Her case is that each of the first, second and third suspension decisions were unreasonable in that sense, and constituted a breach of the MSA, which has caused the plaintiff loss, and for which the defendant is liable to pay damages.
77 In addition, the plaintiff also claims that each of the suspension decisions was unreasonable or absurd, or one which no reasonable person could make, and that those decisions were invalid as a result. That appeared to be a contention that in making each of the suspension decisions, the defendant was, quite apart from its contractual obligations, required to act in a manner that was not unreasonable, in the sense discussed inMinister for Immigration and Citizenship vLi.29
78 In addition, in relation to the first suspension decision, the plaintiff claims that in making that decision, the defendant failed to take into account all information relating to that decision which was then available to it, and that that constituted a breach of cl 5(f) of the Clinical Privileges Conditions in sch 1A to the MSA.
79 In other words, the plaintiff advances a challenge to the first, second and third suspension decisions on both what might be described as administrative law grounds, and on the basis of an alleged breach of contract.
Assessing the strength of the plaintiff's case
80 As I have already mentioned, the defendant has not yet filed a defence. It was apparent, from the submissions of counsel at the hearing, that the defendant disputes that the suspension decisions are invalid, or that it has acted in breach of the MSA or that it is liable to pay damages. But the precise basis upon which it will put its defence to the plaintiff's claim is as yet unknown. That circumstance means that it is very difficult to assess the strength of the plaintiff's claims. In a case where an application for interlocutory injunctive relief is heard on an urgent basis, where a defendant has not yet filed a defence, and (as in this case) advances only limited evidence in response to the application for injunctive relief, the scope for making any assessment of the strength of the plaintiff's case is necessarily limited. All that can be done is to ascertain whether the causes of action advanced by the plaintiff are open to her, and to assess whether the evidence presently available supports her claims. In the latter respect, the strength of a plaintiff's claim is always necessarily a relative concept. In a case such as the present, where the defendant has not yet pleaded a defence, nor put on significant evidence as to the facts surrounding the Incident, the assessment of the strength of the plaintiff's claim is likely to be a largely artificial exercise.
81 Nevertheless, in the present case, the following observations can be made about the strength of the plaintiff's case.
The plaintiff's claims that the suspension decisions were unreasonable
82 In so far as the plaintiff contends that the suspension decisions were invalid because they were unreasonable, independently of the existence of an implied term of reasonableness in the MSA, and in so far as the suspension decisions are characterised as an exercise of power under the MSA, rather than an exercise of public power by a corporate body, as the defendant's counsel appeared to contend, the basis for that claim is far from clear.30 However, in so far as the plaintiff contends that it was an implied term of the MSA that the power to suspend the plaintiff's clinical privileges was a discretionary power which the defendant was obliged to exercise reasonably, at least in the sense that the power should not be exercised in a way which is manifestly unreasonable, recent authority suggests that such a claim might be available.31 The law in this area is evolving. Questions remain as to the standard of 'reasonableness' which would be implied in relation to the exercise of a discretion under a contract.32 Of course, those issues need not be resolved here. The point is that if the plaintiff has a claim for a breach by the defendant of an implied duty, under the MSA, to act reasonably in its exercise of the power to suspend the plaintiff's clinical privileges, that claim must be regarded as one to which a good deal of uncertainty attaches.
83 Secondly, the question of the reasonableness of the defendant's decisions to suspend the plaintiff's clinical privileges requires an assessment of the evidence as to whether the plaintiff's conduct gave rise to a risk, or reasonably founded a concern on the part of the defendant that she posed a risk, to the safety of other patients in her care, so as to warrant the suspension of all of her clinical privileges. Assessment of the reasonableness of the defendant's conduct in those circumstances requires an assessment of the degree of risk, the nature of the risk, and any alternatives to full suspension which might have mitigated that risk.
84 The plaintiff's view is that with the exception of the fact that the Patient was put under a general anaesthetic before the plaintiff conducted the manual pelvic examination, her conduct was generally consistent with generally accepted standards of medical practice.33 Counsel for the plaintiff also submitted that the risk to the patient, and to the child she was carrying, as a result of being unnecessarily placed under a general anaesthetic in this case, was very low. The plaintiff deposed that she had informed the supervisors of her obstetrics training of her suspension, and that her obstetric supervisors are supportive of her continuing obstetric practice. The affidavits of Dr T and Dr R confirm that to be the case. Their evidence was also to the effect that they were of the view that if the suspension of the plaintiff's clinical privileges was lifted, she would not pose an ongoing risk to the safety of other patients.
85 The defendant takes a very different view. The defendant sees the plaintiff's conduct as a serious departure from the generally accepted standard of medical practice. The affidavit of Dr C, who is an obstetrician with many years of experience, outlined the generally accepted standards for determining gestational age. He deposed that an ultrasound is 'the gold standard' for determining the gestational age of a foetus, by which I understood him to mean that it was the most reliable means for determining the gestational age of a foetus. He deposed that another means for determining gestational age was by a pelvic examination, and that 'an experienced practitioner may be able to assess gestational age in the first trimester (less than 12 weeks gestation) to within two weeks'34. Dr C noted that other means for estimating gestational age, including by analysis of the hCG in the blood, were not always reliable or certain indicia of gestational age.
86 Dr C expressed the opinion that an ultrasound examination was the expected practice, regardless of the assessment of the referring general practitioner, to determine the gestational age of the pregnancy, and that this standard of care:35
requires that a surgical termination of pregnancy should not be undertaken without a prior ultrasound examination and this responsibility ultimately is that of the practitioner performing the procedure.
Whilst there are rare circumstances in which it may be appropriate to anaesthetise a patient to conduct a pelvic examination … an anaesthetic should not be necessary to determine gestational age, and should not have been necessary in this case.
87 In his affidavit filed in these proceedings, Dr B deposed that in his opinion, the plaintiff's conduct in booking and commencing the surgical procedure on 22 January 2016:36
without conducting either an ultrasound examination or a pelvic examination to confirm gestation was a significant departure from standard practice.
88 The evidence of the assessment of the degree of risk to other patients to which this alleged departure from accepted medical practice gave rise, was set out in the affidavit of Dr B, and the documentary evidence as to the Panel's conclusion as to why the suspension should continue.
89 Dr B's evidence was that the plaintiff's conduct warranted 'immediate suspension of clinical privileges.'37 In addition, he deposed that in his view, the plaintiff's submission in response to the Incident (that is, presumably, her letter of 18 February 2016):38
showed limited insight into her actions or evidence of taking responsibility for the incident. … This reply, in combination with the seriousness of the [I]ncident on 22 January 2016, means that I do not wish [the plaintiff] to have her clinical privileges restored to enable her to practice at [the hospital until the completion of the investigation].
90 In other words, he considered that not only the departure from standards itself, but the plaintiff's response to the Incident, gave rise to concerns about the risk posed by the plaintiff in treating other patients. As I understand his evidence, it is that until an investigation is completed, and the actual risk (if any) is ascertained, he does not consider it appropriate to restore the plaintiff's clinical privileges.
91 Finally, the Panel, which is made up of three medical practitioners, including a practitioner independent of the parties, formed the view that the suspension should continue. While there was no evidence of their assessment of the ongoing risk to other patients posed by the plaintiff, in view of her conduct in relation to the Incident, it must be inferred that they considered that there was a sufficient risk to warrant the continuation of the suspension pending the outcome of the investigation. In his letter of 1 June 2016, the Director General (in confirming his view that the suspension should continue) appeared to rely upon the view that in the absence of any new evidence, the view previously taken - that the risk thought to arise from the plaintiff's conduct warranted the continuation of the suspension - continued to be justified.
92 No doubt those views about the risk posed by the plaintiff to other patients took into account the nature of the medical services that she performs and the risks inherent in that work. The clinical privileges from which the plaintiff has been suspended included the provision of medical services to pregnant women in hospital, including certain surgical procedures and the delivery of babies. A failure to provide a woman in those circumstances with medical care which meets accepted standards of medical practice can, self-evidently, carry with it the risk of serious (and in some cases, very serious or even fatal), consequences for the mother or child.
93 Finally, the reasonableness of the defendant's conduct must take into account whether there were any alternatives to the complete suspension of the plaintiff's clinical privileges which would have mitigated any risk to patients posed by the plaintiff. The plaintiff has offered an undertaking to the effect that she will refrain from conducting the surgical termination of pregnancies while the hospital undertakes its review of her clinical conduct.
94 However, there was no evidence that a partial suspension of the plaintiff's clinical privileges was feasible in this case. By way of example, one option (which was mentioned in the email correspondence between officers of the defendant to which I have referred at [69]) was that the plaintiff might perform some of the obstetric work for which she was credentialed under supervision. However, in his affidavit in these proceedings, Dr B deposed that there was only one obstetrician consultant at the hospital. He had previously supervised the plaintiff, but withdrew from doing so in October 2014, and had indicated that he was not willing to supervise the plaintiff again.39
95 Having regard to the evidence presently available, and acknowledging that no witnesses have been cross examined, in my view, at this stage, the plaintiff's case that the defendant's conduct was manifestly unreasonable is, at best, a weak one.
The claims based on a denial of procedural fairness
96 The plaintiff's case with respect to the alleged denial of procedural fairness is a stronger one. Even if the suspension decisions are characterised as an exercise of power under the MSA by a corporate body, it is well established that the requirement for procedural fairness can operate in the context of domestic tribunals and decision makers when making decisions which are liable to affect the rights or interests of individuals, especially interests in earning a livelihood.40 There is no doubt that the suspension decision adversely affected a right or interest of the plaintiff, and the requirement to afford procedural fairness is reflected in the MSA (including by the incorporation of the provisions of the MOU).
97 Two key questions arise in the present case. The first is whether the first suspension decision, or the second suspension decision, continue to be operative, or whether the suspension of the plaintiff's clinical privileges is now solely attributable to the third suspension decision. The defendant's position at the hearing was that the plaintiff's case necessarily turned on whether she would be able to establish a failure to afford procedural fairness in relation to the first suspension decision. But to my mind there appears to be a strong argument that at least the ongoing suspension of the plaintiff's clinical privileges is now attributable to the third suspension decision.
98 That question is important from the perspective of ascertaining the content of the requirement to afford procedural fairness, and whether that requirement was met in relation to the relevant decision. It is well established that the content of a requirement to afford procedural fairness will be affected by the circumstances, including the nature of the inquiry and the subject matter.41 Procedural fairness in that sense 'more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case'.42 In particular, while urgency will not generally be allowed to exclude a right to natural justice, it may in the circumstances reduce its content.43
99 The evidence thus far suggests that the first suspension decision was made in circumstances of some urgency, when it had come to the attention of the defendant that the plaintiff had engaged in conduct which appeared to be a serious departure from accepted practice, and in a context where the Incident was regarded as a 'near miss' of a serious injury or fatal outcome. The evidence also suggests that Dr M made an attempt to obtain input from the plaintiff as to what had occurred, but when that input was not forthcoming Dr R proceeded to make a decision that the plaintiff's clinical privileges should be suspended. It is significant that that suspension is a temporary one, pending the outcome of an investigation into the plaintiff's conduct.
100 In those circumstances, the plaintiff's complaint of a denial of procedural fairness in respect of the first suspension decision, appears at this stage to be, at best, a weak case.
101 However, the plaintiff's case in respect of a denial of procedural fairness in respect of the third suspension decision appears to be stronger. That is because the evidence suggests that the Panel relied upon new allegations and material about which the plaintiff had no notice nor opportunity to be heard. Counsel for the defendant did not concede that procedural fairness was not afforded to the plaintiff at that point, but acknowledged that that may be a matter about which the court 'would choose to draw a conclusion … rather than insisting on a formal position'.44
102 Bearing in mind these preliminary views about the strength of the plaintiff's case, I turn to consider the balance of convenience.
5. Balance of convenience considerations
103 The plaintiff deposed that she has suffered significant financial loss as a result of the suspension of her clinical privileges, and is now under significant financial pressure. The plaintiff deposed that prior to the suspension of her clinical privileges, 75% of her working day was spent providing medical services of an obstetric related nature, 90% of her medical income was derived from providing medical services of an obstetric nature and 70% of her medical income was derived from work at the hospital. She estimated that her income had reduced by approximately 50% in the period since the Incident. The plaintiff also deposed that she owns, or has a share in, a number of residential and commercial properties, and will not be able to meet her June mortgage payment without refinancing property, which she has so far been unable to do.
104 In some respects, the plaintiff's evidence as to the financial impact of the suspension decisions on her raised more questions than it answered. There was no evidence of what the decrease in income meant for the plaintiff in real terms, and there was no evidence as to the quantum of the mortgage payment which is due.
105 There was also no evidence as to why it is not open to the plaintiff to continue earning a substantial income by virtue of her entitlement to continue to practice as a general practitioner. The plaintiff currently works in general practice, although, to date, has focused on obstetric practice. The extent to which she can work in general practice has been hampered by the fact that her clinical privileges at the hospital have been suspended. Counsel for the plaintiff submitted that it was not open to the plaintiff simply to take on more patients as a general practitioner, and so to supplement her income in that way. However, there was no evidence as to why that is not possible.
106 Furthermore, the plaintiff deposed that in view of her suspension she has voluntarily stood down from practice at another hospital until the investigation into the Incident is completed. However, there was no evidence to suggest that her privileges at that hospital would have been suspended by virtue of their suspension elsewhere. For that reason, the plaintiff's loss of income from work at that hospital appears to have been the consequence of a voluntary decision on her part.
107 Quite apart from these deficiencies, I am not persuaded that this is a case in which the plaintiff will suffer irreparable injury for which damages will not be an adequate remedy. The financial impact of the suspension decisions appears to me to be precisely the sort of injury for which damages would be an adequate remedy, notwithstanding that it can sometimes be difficult to quantify such damages with precision.
108 The plaintiff also deposes that tenants of the properties she owns would be adversely affected if she were forced to surrender any of the properties she owns for financial reasons. That consideration warrants little weight. At this stage that consideration is nothing more than speculation about the possible ongoing financial ramifications of the suspension decisions.
109 The plaintiff further deposed that she is very concerned about the harm to her reputation as a result of the continued suspension of her clinical privileges. She deposed that it has come to her attention that some of her former patients have been told that her clinical privileges have been suspended. This claim also warrants little weight in the overall balance of convenience. The difficulty with the plaintiff's case in this respect is that it was not clear from the evidence that any reputational harm the plaintiff has, or will, suffer could be attributed to knowledge of the suspension, rather than to knowledge of the Incident itself.
110 Quite independently of its relevance to the reasonableness of the defendant's conduct, the question of the ongoing risk, if any, posed by the plaintiff to the safety of other patients, weighs very heavily in considering the balance of convenience. Although Dr T and Dr R have expressed the view that the plaintiff does not present a risk to patients, the evidence outlined above at [41] - [59] indicates that medical practitioners engaged by the defendant, and members of the Panel, have taken the view that concern about the risks to patient safety, to which the plaintiff's conduct may give rise, warrants the suspension of the plaintiff's clinical privileges pending the outcome of the investigation.
6. Whether injunctive relief should be granted
111 This is a case in which the plaintiff's claim in relation to the denial of procedural fairness, at least with respect to the third suspension decision, appears to be a strong one. On the other hand, the continued existence of concerns about the risk to patient safety which the plaintiff may pose is a factor which very strongly weighs against the grant of injunctive relief to restore the plaintiff's clinical privileges at this point in time. The latter consideration is, in my view, a compelling reason for refusing injunctive relief at this point. The other balance of convenience factors on which the plaintiff relies do not constitute a strong case for injunctive relief.
112 For the reasons outlined at [93] - [94], there is no evidence to support the conclusion that an alternative to complete suspension of the plaintiff's clinical privileges is feasible. That excludes the possibility of the grant of injunctive relief which would require the reinstatement of some of the plaintiff's clinical privileges.
113 Finally, counsel for the defendant suggested that it appeared that the investigation of the plaintiff's conduct was now underway, and that there was some prospect that it might be completed in July. In my view, no weight should be given to that consideration, in assessing the balance of convenience here. Given the very lengthy, and largely unexplained, delay in the Panel being constituted, and the scope of the matters concerning the plaintiff's relationships with other staff which are now also being investigated as part of the review of her conduct, it is difficult to be confident that the review will be completed in the near future. Having said that, I would emphasise that it is clearly in the interests of all concerned that the review be completed as soon as possible.
114 The plaintiff's application for an interlocutory injunction should be dismissed. I will hear further submissions from the parties in relation to the publication of these reasons, and in relation to any other non-publication or suppression orders which should be made.
1Mineralogy Pty Ltd v Sino Iron Pty Ltd[2016] WASCA 105 [87].
2Mineralogy Pty Ltd v Sino Iron Pty Ltd[2016] WASCA 105 [102].
3 Memorandum of Understanding cl 5(10)(a).
4 Memorandum of Understanding cl 5(11).
5 Memorandum of Understanding cl 5(13).
6 Memorandum of Understanding cl 5(14)(c).
7 Memorandum of Understanding cl 5(14)(f).
8 Memorandum of Understanding cl 5(14)(f).
9 Memorandum of Understanding cl 5(14)(e).
10 Memorandum of Understanding cl 5(28).
11 Memorandum of Understanding cl 5(30).
12 Memorandum of Understanding cl 5(27).
13 Memorandum of Understanding cl 5(10)(b).
14 Memorandum of Understanding cl 5(34).
15 Memorandum of Understanding cl 5(34).
16 Plaintiff's affidavit sworn 11 May 2016, Annexure ALA13.
17 Plaintiff's affidavit sworn 11 May 2016, Annexure ALA16.
18 Plaintiff's affidavit sworn 11 May 2016, Annexure ALA15.
19 Plaintiff's affidavit sworn 11 May 2016, Annexure ALA15.
20 Plaintiff's affidavit sworn 11 May 2016, Annexure ALA15.
21 Plaintiff's affidavit sworn 11 May 2016, Annexure ALA16.
22 Attachment 27.
23 Affidavit of Enore Antonio Panetta sworn 2 June 2016, Annexure EAP5.
24 Affidavit of Enore Antonio Panetta sworn 2 June 2016, Annexure EAP9.
25 Affidavit of Enore Antonio Panetta sworn 2 June 2016 [25].
26 Affidavit of Enore Antonio Panetta sworn 2 June 2016, Annexure EAP11.
27 Plaintiff’s supplementary affidavit sworn 22 June 2016, Annexure ALA40.
28 Plaintiff’s supplementary affidavit sworn 22 June 2016, Annexure ALA14.
29Minister for Immigration and Citizenship vLi [2013] HCA 18; (2013) 259 CLR 332.
30 But cf Michael Christie v Agricultural Societies Council of NSW Ltd [2015] NSWSC 1118 [38] - [68] (Kunc J).
31Bartlett v ANZ Banking Group Ltd [2016] NSWCA 30 [39]-[49] (MacFarlan JA, Meagher and Simpson JJA agreeing on this point); see also Braganza v BP Shipping Ltd [2015] UKSC 17 [18] - [19] (Lady Hale).
32 See, for example, Mineralogy Pty Ltd v Sino Iron Pty Ltd (No. 6)[2015] FCA 825 [1014] - [1015] (Edelman J).
33 Plaintiff's affidavit sworn 11 May 2016 [93(g)].
34 Affidavit of Dr C affirmed 20 June 2016 [10]
35 Affidavit of Dr C affirmed 20 June 2016 [40].
36 Affidavit of Dr B sworn 22 June 2016 [10].
37 Affidavit of Dr B sworn 22 June 2016 [10].
38 Affidavit of Dr B sworn 22 June 2016 [12].
39 Affidavit of Dr B sworn 22 June 2016 [13].
40 See, for example, Mitchell v Royal New South Wales Canine Council Ltd (2001) NSWCA 162; (2001) 52 NSWLR 242 [246] - [248] (Ipp JA).
41 See for example, Kioa v West(1985) 159 CLR 550, 584 - 585 (Mason J), 613 (Brennan J); Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam(2003) 214 CLR 1 [48] (McHugh & Gummow JJ); CPCF v Minister for immigration and Border Protection(2015) 89 ALJR 207 [306] (Kiefel J) and the cases cited by her Honour therein.
42Kioa v West(1985) 159 CLR 550, 585 (Mason J).
43South Australia and Anor v Slipper(2004) 136 FCR 259 [93] (Finn J, Finkelstein J agreeing).
44 ts 94 (27 June 2016).
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