Brennan v Medical Council of NSW

The Relevant Law

1. The Appeal is brought pursuant to s.159 and s.159B of the National Law. An Appeal pursuant to s.159 is "dealt with by way of a new hearing" at which the parties may adduce fresh evidence. An Appeal pursuant to s.159B is brought in respect of a point of law.
2. Section 165L of the National Law permits the Tribunal to order a stay of a decision of the Council, pending disposition of an appeal pursuant to s.159B. There is no power to order a stay in respect of an appeal pursuant to s.159.
3. The Amended Grounds of Appeal of the Practitioner are set out in an Application for Stay of an Original Decision filed on 24 May 2023. These Amended Grounds of Appeal read as follows: 1. This Appeal is made under Section 159(1)(a) and/or Section 159B of the Health Practitioner Regulation National Law (NSW) ("the National Law"). Background 2. The Applicant is a registered medical practitioner. By decision dated 16 February 2023, the Medical Council of NSW Imposed a Not to Practice condition on the Applicant's registration as a medical practitioner pursuant to the National Law and deciding to impose a Not to Practice condition, the Council was required to have the protection of the health and safety of any person or persons or that it was otherwise in the public interest. 3. In exercising its functions and imposing conditions pursuant to section 150 of the National Law and deciding to impose a Not to Practice condition, the Council was required to have the protection of the health and safety of any person or persons or that it was othwise in the public interest. Grounds for Appeal 4. The Applicant appeals the condition imposed by the Council's decision based on the following grounds pursuant: a. The reasons given for the condition do not demonstrate that it was either necessary or appropriate to impose the condition for the protection of the health or safety of any person or persons, or that it was otherwise in the public interest, or that it was necessary or appropriate for any other reason. b. The condition was manifestly excessive. c. The condition is so unreasonable that the decision is unlawful. d. The Applicant was denied natural justice or procedural fairness in that there was no objective evidence or any safety concerns from the Applicant's patients. 5. Further and in the alternative, the Council erred in respect of a point of law in making a finding that the Applicant had breached condition 9 of the conditions on his registration in circumstances where: a. It was not part of the statutory task to make a finding of fact in respect of that matter; and/or b. It misunderstood the test for making the finding of whether there had been a breach of condition 9; and/or c. It denied natural justice or proc3edural fairness to Dr Brennan in making that finding. 6. The Council erred in respect of a point of law in placing an onus on the Applicant to provide a definitive explanation for the positive EtG results. 7. The Council misunderstood and/or misapplied the test of whether it is otherwise in the public interest to take action under Section 150 of the National Law, and in doing so erred in respect of a point of law.
4. The legal principles relevant to an Application for a Stay in Respect of an Appeal pursuant to s.159B are set out by Cole DCJ, Deputy President, in Hanna v Dental Council of New South Wales [2023] NSWCATOD 71 as follows:

Principles relevant to an application for a stay

1. In Hanna v Dental Council of New South Wales [2022] CATOD 54, the principles relevant to an application for a stay are set out as follows at [6]-[9]: 6. The principles to be applied when considering whether to grant a stay are well established (Ansari v Medical Council of New South Wales [2021] NSWCATOD 138; Hill v Medical Council of New South Wales [2019] NSWCATOD 52; and Liu v Chinese Medicine Council of New South Wales [2019] NSWCATOD 13). 7. Those principles can be summarised as follows: (a) The onus is on an applicant for a stay to make out a case that it is appropriate to make such an order. (b) An order staying the operation of a decision or orders will generally be appropriate where such an order is reasonably necessary to secure the effectiveness of the appeal. (c) The Tribunal may take in to account the strength or otherwise of the case of the party seeking the stay. (d) The Tribunal's power to grant a stay includes a power to make such an order subject to such conditions as the Tribunal specifies. (e) In exercising the discretion the Tribunal will weigh the balance of convenience and the competing rights of the Parties and may impose appropriate conditions so as to achieve a result that is fair to all parties. (f) The overriding principle in an application for a stay is to ask what the interests of justice require. 8. An appeal on a point of law and the stay application are to be determined under the National Law. As with all applications under the National Law the object in s.3A is relevant, namely, that the health and safety of the public is to be the paramount consideration and is a matter entitled to significant weight once it appears that a professional person has misconducted him or herself to a substantial degree (Segal v Medical Council of New South Wales [2020] NSWCATOD 86 at [43] to [47] per Boland DP). 9. Each case must turn on its own specific facts. The Applicant bears the onus of establishing that it is appropriate to grant the stay (Taylor v Medical Board of Australia [2018] NSWCATOD 50 at [59] per Boland DP).

Is a Stay Order Reasonably Necessary to Secure the Effectiveness of the Appeal?

1. The Appeal is listed for determination on 6 & 7 September 2023, that is, some six weeks after the hearing of this Application for a Stay. The "Not To Practice" order was made on 16 February 2023. Accordingly, the Applicant has been prevented from practice for some five and a half months and his Appeal will be heard in some six weeks. Obviously, some time thereafter will be required for preparation of an appeal judgment.
2. In these circumstances, I am unable to conclude that a Stay is necessary to ensure the effectiveness of the Appeal. If the Appeal is successful, the Applicant will be in a position to resume medical practice in the relatively near future.

The Strength of the Case of the Applicant

1. For the purposes of the present application, it is necessary only that the Applicant satisfy the Tribunal that he has an arguable case. The Tribunal is not required to form any concluded view on the merits on the Grounds of Appeal.
2. The Amended Grounds of Appeal are set out above in these reasons. In his written submissions counsel for the Applicant summarised these grounds as follows: 1. failing to give adequate reasons 2. addressing the incorrect question 3. a denial of procedural fairness 4. unreasonableness in the Wegnesbury sense.
3. In this hearing, the Applicant gave considerable focus to the ground of legal unreasonableness. His Counsel drew attention to a passage in Segal v Medical Council of New South Wales [2020] NSWCATOD 86, where Boland AM ADCJ Deputy President cited the Full Court of the Federal Court in Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 as follows: First, the concept of legal unreasonableness concerns the lawful exercise of power. Legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision making: Li at 350 [26] and 351 [29] (French CJ, 362 [63] Haine Keifel and Bell JJ} and 370 [88] (Gageler J); Singh at 445 [43]; Stretton at [4] (Allsop CJ) and [53] (Griffiths J). Second, the Court's task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory (Li at 363 [66]). It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decisions reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker: Li at 363 [66] (Haine, Keifel and Bell JJ); Stretton at [12] (Allsop CJ) and [58] (Griffiths J); see also M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 2015 90 ALJR 197 at 203 [23]. Nor does it involve the Court remaking the decision according to its own view of reasonableness; Stretton at [8] (Allsop CJ). Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves the conclusion after the identification of a recognised species of jurisdictional error in the decision-making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an "outcome focus" conclusion without any specific jurisdictional error being identified: Li at 350 [27] - 351 [28] (French CJ), 72 (Haine, Keifel and Bell JJ); Singh at [44]; Stretton at [6] [Allsop CJ]. Fourth, in assessing the particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of "decisional freedom" within which a decision-maker has a genuinely free discretion: Li at 351 [29] (French CJ), 363 [66] (Haine, Keifel and Bell JJ). Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness; Li at 363 [66] (Haine, Keifel and Bell JJ); Stretton at [7] (Allsop CJ). Such a decision falls within the range of possible lawful outcomes of the discretion of the power; Li at 375 [105] (Gageler J); Stretton at [11] (Allsop CJ). Fifth, in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute: Li at 349 [24] (French CJ), 363 [67] - 364 [67] (Haine, Keifel and Bell JJ); Stretton at [55] and [62] (Griffiths J). The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making: Stretton at [7] and [11] (Allsop CJ). The evaluation is also likely to be fact dependent and to require careful attention to the evidence: Singh at 445 [42]. Sixth, where reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable; Singh at 446 [45] - 447 [47]. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable: Singh at [47]. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the Court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes: Li at 367 [76] (Haine, Keifel and Bell JJ); Stretton at [13] (Allsop CJ). Seventh, and perhaps most importantly, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly define categorisation or precise textural formulae: Stretton at [2] and [10] (Allsop CJ) and [62] (Griffiths J). That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ and Stretton at [5]. The expressions that have been utilised include decisions which are "plainly unjust", "arbitrary", "capricious", "irrational", "lacking in evident or intelligible justification", and "obviously disproportionate". It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a "check list" exercise, Singh at 445 [42]. Rather, it involves the court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.
4. The written submissions of the Applicant summarised the arguments in support of the ground of legal unreasonableness as follows:

• there was no direct evidence of misconduct by the Practitioner.
• there were seven positive EtG results over a period of eighteen months, during which tests were undertaken two or three times per week
• the positive result on 29 December 2022 occurred on a day when the Practitioner was not required to take a test but did so voluntarily, thus it "beggars belief" that he would have consumed alcohol knowingly
• the EtG results were negative on 28 December 2022 and 30 December 2022, which suggests a low alcohol level on 29 December 2022 that may have been due to accidental ingestion or contamination.
• all hair follicle tests have returned negative results
• the Practitioner has returned negative results on all breath analysis tests
• all of the blood tests, which were taken voluntarily by the Practitioner, have produced negative results
• there was no evidence of any "actual issue with patient care or clinical work, thus any risk" was not "meaningfully realistic and is clearly mitigated by the conditions prior to suspension".

1. The Applicant submitted that it is arguable that the power of suspension was exercised in a legally unreasonable way, when less draconian steps would have protected the health and safety of the public. The Applicant suggested that the existing conditions would well have served that purpose.
2. The Applicant contended that the same arguments support the grounds of inadequacy of reasons and denial of reasonable fairness. It was submitted that the delegates did not engage meaningfully in a balancing of the need for suspension from practice, as against the continuation of existing conditions.
3. The Applicant took issue with the finding by the delegates that he had breached Condition 9. It was submitted firstly that their task in the Section 150 Hearing did not involve the making of a positive finding as to disputed conduct. Secondly, it was contended that the Applicant had no opportunity to test the evidence and thus was denied natural justice.
4. In a submission of the Applicant, the denial of natural justice and procedural fairness was compounded by a finding that the breach was based on "a pattern of behaviour" rather than consumption of alcohol. He contended that the "pattern" was not identified in the reasons and that the legal onus effectively was reversed such that he was required to provide "a definitive explanation for the positive EtG results …".
5. The Respondent contended that there is no necessity for proof that the medical practice of the Applicant was affected in any way by the positive test results. The Respondent contended that the delegates "had appropriate and realistic regard to the assessment of the risk posed by the Appellant's drug use to his patients and the risk to the health and safety of the public." The Respondent drew attention, in this context, to the substance abuse history of the Applicant.
6. The Respondent submitted that the test for unreasonableness is necessarily stringent: Minister for Immigration and Border Protection v SZ v FW [2018] 264 CLR 541. It was submitted further that the existence of arguments which might be advanced in opposition to the decision is insufficient to constitute legal unreasonableness.
7. As noted above, it is not the task of the Tribunal to form a concluded view as to the merits of the grounds of appeal. In Legal Services Commission v Barker [2005] QCA 482 Chesterman J, with whom McMurdo P and Helman J agreed, said as follows at [303]: "It goes without saying that the demonstration of an arguable appeal is a condition precent to obtaining a stay. No court or tribunal would consider staying the operation of an order where it is clear that there was no realistic prospect of a successful appeal. That is not to say that the existence of an arguable grounds of appeal is a sufficiently cogent reason for granting a stay …"
8. It seems to me that the Applicant has raised arguable grounds of appeal on a point of law. The merits of these grounds are a matter for submissions, full argument and determination at the hearing of the appeal. In my view, it would be inappropriate that I give detailed consideration to the merits of the grounds of appeal for the purpose of the present application.

The Balance of Convenience and the Competing Rights of the Parties

1. In this context, the Applicant relied upon his inability to practice and earn an income, together with reputational damage. It is undoubtedly the case that the "Not to Practice" order has resulted in detrimental effects to the financial position and professional reputation of the Practitioner. On the other hand, as submitted by the Respondent, these adverse effects would be the result for almost any practitioner who is subject to such an order.
2. The Applicant contended that the only "balance of convenience factor, upon which the Respondent could rely, is the health and safety of the public or the public interests." The submissions of the Respondent set out reasons why the Applicant may pose a risk to the health and safety of the public. Counsel for the Respondent drew attention to the absence of any evidence from the Appellant as to compliance with the testing regime and ongoing medical treatment since February 2023. The last test result, of which the Tribunal is aware, took place on 15 February 2023.
3. In these circumstances, Counsel for the Respondent submitted that it is impossible for the Tribunal to make any assessment as to the current level of risk posed by the Applicant to the health and safety of the public. Counsel for the Respondent drew attention to the longstanding nature of the substance abuse and mental health issues of the Applicant. It was submitted that this situation "is only made worse by the [Appellant's] prior and recent failures, including in 2022, to disclose the true extent of his issues to the Council and his treating practitioner." Conclusion
4. I see merit in the submissions of counsel for the Respondent as to the difficulty in attempting an assessment of the level of risk presently posed by the Applicant to the health and safety of the public. There was no evidence of any testing, or results thereof, since February 2023. There was no evidence as to the current state of the mental health of the Applicant. It may be that the Applicant currently has financial difficulties with regard to the testing regime but he gave no such evidence.
5. I do not accept the submission on behalf of the Practitioner, to the effect that he "is entitled to a presumption of continuity" in respect of the testing regime. No basis was offered for this supposed presumption on behalf of the Applicant. In my view, such a presumption sits uncomfortably with section 3A of the National Law.
6. The National Law required that the health and safety of the public is the paramount consideration in the determination of this application (section 3A). The appeal will not be rendered negatory if there is no stay of the order; the Applicant has an arguable case on appeal; there are detrimental effects to the Applicant of the "Not to Practice" order but the prevailing consideration must be the health and safety of the public. For these reasons, I refuse the application for a stay.

Orders

1. The application of Dr Keith Brennan, filed on 24 May 2023, for a stay of the "Not to Practice" order made on 16 February 2023 is refused.
2. The costs of the stay application are reserved.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 August 2023