[1990] HCA 57
CPCF v Minister for Immigration (2015) 255 CLR 514
Source
Original judgment source is linked above.
Catchwords
[1990] HCA 57
CPCF v Minister for Immigration (2015) 255 CLR 514
Judgment (3 paragraphs)
[1]
Solicitors:
Norton Rose Fulbright (Applicant)
Loraine Yii, Legal Officer, Health Professional Councils Authority (Respondent)
File Number(s): 2020/255396
[2]
Judgment
HIS HONOUR: By Summons filed 2 September 2020, the applicant, Ms Christine Bolstad, sought urgent relief before the Court, as presently constituted, sitting as the Common Law Duty Judge, in the following terms:
"The Psychology Council of New South Wales and/or its nominees be restrained from proceeding with the section 150 of the Health Practitioner Regulation National Law (NSW) meeting relating to the Applicant Ms Christine Bolstad until a date after 25 September 2020."
The applicant also sought that the respondent, Psychology Council of New South Wales ("the Council"), pay the applicant's costs of the application.
The proceedings were heard on the same day that the Summons was filed, being 2 September 2020, and the Court issued the following Orders, with short reasons provided and formal reasons reserved:
The Psychology Council of NSW and or its nominees be restrained from proceeding to make final orders of suspension of registration under s 150 Health Practitioner Regulation National Law (NSW) (hereinafter "the Act") relating to the Applicant, Ms Christine Bolstad, until the Applicant has been afforded a reasonable opportunity to prepare her case or until a date after 25 September 2020, whichever is earlier.
Declaration that a condition that the Applicant not practise psychology pending the further hearing to finalise the issues under s 150 of the Act or an interim order suspending registration until the further hearing to finalise the issues under s 150 of the Act is not a final order that is constrained by Order 1 herein.
No order as to costs
Bolstad v Psychology Council of New South Wales [2020] NSWSC 1417 | Case summary | Zoe
These are the foreshadowed formal reasons.
Evidence
The applicant relied on an Affidavit of her solicitor, Jessica Luppino, dated 2 September 2020, annexing correspondence sent between the applicant (or her representatives) and the Council.
The Council relied on various documents including the current conditions imposed on the applicant's registration as a psychologist, a copy of the applicant's last two Impaired Registrants Panel decisions dated 3 October 2019 and 21 May 2020, as well as the Council's Alcohol Screening Policy and EtG Screening Policy.
Background
The applicant is a psychologist with more than 25 years' experience. She has a history of alcoholism, with various periods of abstinence and relapses dating back to around 2010.
The applicant has attended various meetings with the Council in order to assist the Council to determine whether to suspend or impose conditions on her registration pursuant to s 150 of the Health Practitioner Regulation National Law (NSW) (hereinafter, "the Act"). These meetings are referred to as "section 150 hearings".
Section 150 of the Act provides:
"150 Suspension or conditions of registration to protect public [NSW]
(1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest -
(a) by order suspend a registered health practitioner's or student's registration; or
(b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or
(c) by order impose on a student's registration the conditions the Council considers appropriate.
(2) A suspension of a registered health practitioner's or student's registration under subsection (1) has effect until the first of the following happens -
(a) the complaint about the practitioner or student is disposed of;
(b) the suspension is ended by the Council.
(3) If a Council for a health profession is satisfied a health practitioner or student registered in the profession has contravened a critical compliance order or condition, the Council must -
(a) suspend the practitioner's or student's registration until a complaint concerning the matter is dealt with by the Tribunal; and
(b) refer the matter to the Tribunal as a complaint.
(4) A Council for a health profession may take action under this section -
(a) whether or not a complaint has been made or referred to the Council about the practitioner or student; and
(b) whether or not proceedings in respect of a complaint about the practitioner or student are before a Committee or the Tribunal.
(5) Without limiting the conditions that may be imposed under subsection (1)(b), a Council may impose a condition requiring the registered health practitioner to undergo a performance assessment, but the condition has no effect unless the Commission agrees with the imposition of the condition.
(6) A Council must give written notice of action taken under this section to the registered health practitioner or student concerned.
(7) If a Council delegates any function of the Council under this section to a group of 2 or more persons, at least one of those persons must be a person who -
(a) is not a registered health practitioner or student in the health profession for which the Council is established; and
(b) has not at any time been registered as a health practitioner or student in that health profession under this Law or a corresponding prior Act."
The applicant has attended section 150 hearings on the following dates and on which I make the following comments:
1. In 2011, certain conditions were imposed on the applicant's registration.
2. In 2018, a meeting was held and the applicant subsequently completed a performance assessment and attended a health assessment with a psychiatrist. No further action was taken.
3. In 2019, a condition was imposed that she not practise subject to attending an Impaired Registrant's Panel and the imposition of any conditions imposed by that panel.
The applicant has been before the Impaired Registrant's Panel on multiple occasions, including on 3 October 2019 and 21 May 2020, with those attendances being the subject of the reports relied on by the Council in these proceedings.
The Impaired Registrants Panel Report of 3 October 2019 comprehensively details the applicant's dealings with the Council and the history of her Severe Alcohol Use Disorder (at p.2 and following). The following is of note:
1. On 8 August 2018, a patient complained that the applicant was under the influence of alcohol during an appointment.
2. On 26 February 2019, the applicant was taken from her workplace to Royal Prince Alfred Hospital by ambulance in an intoxicated state.
3. On 14 March 2019, the applicant was involved in a car accident under the influence of alcohol and she was taken to hospital by police.
4. On 18 March 2019, the applicant self-notified the Council that she had been hospitalised and was undergoing detoxification due to a relapse of her alcohol-related illness
The applicant's current conditions of practice require her to abstain completely from the consumption of alcohol and to undertake twice-weekly Urine Ethyl Glucuronide (EtG) tests, to monitor her abstinence.
Since the applicant began undergoing the EtG testing in November 2019, positive EtG results, which suggest that the applicant had recently consumed alcohol, were returned on 23 July 2020, 13 August 2020 and 24 August 2020. Dilute EtG results, were returned on 6 April 2020, 3 August 2020, 17 August 2020 and 20 August 2020.
The Council's EtG Screening Policy at section 8.2 provides that more than one dilute urine sample is considered "unsatisfactory" for the purpose of determining whether alcohol has or has not been recently consumed.
On 25 August 2020, the Council sent the applicant a notice by email which indicated that the Council had convened a meeting on 3 September 2020 to consider taking immediate action against the applicant under s 150 of the Act.
The notice states that the Council had received information that the applicant had breached conditions imposed on her registration in light of:
1. A positive EtG result sample taken on 13 August 2020; and
2. Dilute EtG results taken on 17 and 20 August 2020.
The notice also referred to a complaint made by Sheryl Forrest of QML Pathology, the company which performs the EtG testing, about the applicant's conduct.
The applicant maintains that she has not consumed alcohol since 7 April 2019 and she is unable to explain the positive EtG results. The Affidavit of Ms Luppino at [27] sets out various steps the applicant is said to have undertaken in order to investigate the accuracy of the EtG testing results. These steps include requesting QML Pathology to re-test the positive samples (results of which have not been received), and seeking a consultation with Professor Paul Haber, a Consultant Gastroenterologist and addiction specialist, on 17 September 2020, which was the earliest date Professor Haber was available, to review and analyse the test results.
Following receipt of the notice, the applicant's solicitors corresponded with the Council, seeking an adjournment of the section 150 hearing to a date in the week of 21 September 2020 to enable the applicant to obtain the results of the investigatory steps she has undertaken. The Council denied the request for an adjournment, referring to the Council's duty to act in the public interest or to protect any person's health or safety.
Submissions
In short, the applicant submitted that she did not have sufficient time to re-test or to obtain material that might suggest the testing was inaccurate or wrong between 25 August 2020 and 3 September 2020. Accordingly, as a matter of procedural fairness, the applicant submitted that the section 150 hearing should be adjourned for a reasonable period (said to be three weeks) to enable these steps to be completed, having regard to the "disastrous effect" on the applicant if the section 150 meeting was convened.
The disastrous effect referred to was the likelihood that the Council would determine to suspend the applicant's registration, disentitling her to practise as a psychologist, pursuant to either sub-sections 150(1) or (3) of the Act, as a consequence of the positive EtG results and no explanation for them (other than that the applicant had consumed alcohol in breach of her conditions of registration).
Such a suspension would remain in effect until the Council determined to end the suspension (in the case of sub-s (1)) or until the matter was dealt with by the Civil and Administrative Tribunal (NCAT). In any event, if a suspension were imposed, it would subsist for at least a number of weeks, during which the applicant would be unable to practise, in circumstances where the applicant may have been able to obtain evidence that might undermine the accuracy of the testing and, if the evidence were available at the section 150 hearing, may have caused the Council not to impose a suspension.
The applicant accepted that the Council exercises its jurisdiction under s 150 of the Act with the safety of patients and the public as the paramount consideration: see s 3 of the Act. However, the applicant submitted that, in this case, there was no evidence that the public was at risk.
The applicant emphasised that the Council has access to the applicant's practice records, she is limited to seeing 25 patients per week, and she is required to have another registered psychologist at the practice with her whenever she sees patients. On that basis, it was submitted that there could only be a low risk of harm to patients or the public at large.
The Council opposed the adjournment of the section 150 hearing by way of injunctive relief. The Council submitted that section 150 hearings should be considered urgent interim proceedings, where matters are not determined on a final basis, but, rather, issues are referred to the Health Care Complaints Commission (by virtue of s 150D of the Act) and then to NCAT, to be determined on a final basis.
The Council emphasised that the applicant would be given an opportunity to prepare her case properly in response to any matter that arose through the Health Care Complaints Commission process.
The Council also observed that the applicant has extensive rights of review and appeal. The applicant has appeal rights to NCAT, pursuant to ss 159 and 159B of Act. The applicant also has the right to seek a review of any decision pursuant to s 150 of the Act within the Council itself, pursuant to s 150A of the Act. Counsel for the Council accepted that if the applicant obtained expert evidence from Professor Haber, it would be possible for the applicant to apply for a review so that the information could be taken into account and, if appropriate, any earlier decision to suspend could be set aside.
Contrary to what the applicant suggested during the hearing, the Council indicated that a hearing for the purpose of a s 150A review could be convened at short notice and it certainly would not take a month to arrange.
The Council emphasised that the EtG test results were both in breach of the applicant's conditions of registration but also the Council's Alcohol Screening Policy (on p.3 at section 4.2). As a result, it was submitted that it was incumbent on the Council to act on short notice.
The Council relied on the decision in Daryll Knowles v Pharmacy Council of New South Wales [2016] NSWSC 7 at [34] ff where a similar application was brought to delay a section 150 hearing before the Pharmacy Council of New South Wales. At [35], his Honour Lindsay J observed that principles of procedural fairness undoubtedly applied in the context of section 150 hearings. However, those principles are capable of flexible adaptation to the imperative need for urgent decision‑making. On that basis, Lindsay J determined that the applicant Knowles would not be denied procedural fairness by a section 150 hearing proceeding on the following day and dismissed the application for injunctive relief.
The applicant submitted that Justice Lindsay's decision in Knowles could be distinguished from (and, indeed, the reasoning supported) the applicant's case because the Pharmacy Council there had provided the applicant Knowles with four weeks' notice of the section 150 hearing. That hearing was also subsequently adjourned for a further four weeks, during which time the practitioner was able to continue practising. On that basis, it was said that the decision in Knowles supported the applicant's submission that, to be given seven days' notice before a section 150 hearing, is insufficient time in the circumstances. Ultimately, the applicant was asking for a period of four weeks, or shorter if the evidence was available sooner, to put relevant information before the Council.
The Council also referred to Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 at [48], where NCAT emphasised that it was not necessary for actual harm to be suffered by anyone before the Council exercised its powers under s 150 of Act. Instead, it was simply necessary for the Council to be satisfied that there is a potential for harm to the health and safety of any person or persons, or the public generally.
Consideration
As can be seen from the Orders the Court made on 2 September 2020, I was satisfied that it was appropriate, having regard to the principles of procedural fairness, that the applicant should have a reasonable opportunity to obtain material to challenge that which was being relied upon by the Council for the purpose of the section 150 hearing.
Nevertheless, I recognised that the Court should not impede the ability of the Council to fulfil its statutory obligation to ensure the public's safety and, accordingly, did not prevent the Council from imposing an interim order suspending the applicant's ability to practise up until the postponed section 150 hearing.
In preparing these reasons, I have not been given pause to reconsider the Orders made on 2 September and I consider that the brief comments I made in making those Orders provide sufficient reasons for the making of the Orders.
I repeat the references I made to the decisions of the High Court in Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57 and CPCF v Minister for Immigration (2015) 255 CLR 514; [2015] HCA 1, along with the decision of Deane J in Sullivan v Department of Transport (1978) 20 ALR 323; [1978] FCA 48 on the principles of procedural fairness and natural justice.
In particular, a Court or Tribunal that is required to act judicially, which in this instance includes the Council when exercising its powers under s 150 of the Act, is required to provide a person who may be adversely affected by any decision with a reasonable opportunity to prepare and to present their case.
Again, I emphasise that the provision of a reasonable opportunity does not require the Council to ensure that the person takes best advantage of the opportunity so provided.
As I mentioned in my brief comments, I accept that the applicant has been provided with some opportunity to prepare and the Act provides for review and appeal rights. Although, having reviewed the relevant provisions of the Act, I note that there are some additional hurdles for the applicant to succeed on any review or appeal (for example, see the requirements for establishing a change in circumstance in s 150A(4)).
Ultimately, I remain of the view that the dramatic effect on the capacity of the applicant to practise for a significant if not indefinite period into the future requires that the applicant be provided with the additional time she sought to prepare her case.
In order to attempt to satisfy those countervailing considerations, the Court made Orders which attempted to impose (what I referred to during the course of the proceedings as) a "holding regime", whereby the Council could ensure that the public was not exposed to a risk to their safety by the imposition of an interim suspension, which suspension would not be for an indefinite period but, rather, for such a period as would reasonably enable the applicant to obtain the further material she wished to put before the Council.
[3]
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Decision last updated: 14 October 2020