Chakraborty v Medical Council of NSW [2022] NSWCATOD 41 | Case summary

The strength of the proposed appeal

The Applicant's grounds of appeal assert that the determination of the Respondent was legally "unreasonable" in that: "(i) It was not a proper invocation of s 150 of the National Law because suspension was not necessary or appropriate for the protection of the health or safety of any person or persons or otherwise in the public interest; (ii) and was therefore so unreasonable as to be unlawful."
The written submissions of the Applicant traversed a number of matters which might be thought to assert individual points of law. Counsel for the Applicant clarified in oral submissions that the "cumulative effect" of the various complaints advanced by the Applicant was asserted to establish at least an arguable case of legal unreasonableness. Before determining that issue, it is appropriate to briefly refer to the law with respect to "legal unreasonableness".
In Minister for Immigration and Citizenship v Li [2013] HCA 18, to which Counsel for the Applicant referred the Tribunal, the High Court considered legal unreasonableness, which French CJ said, at [28] reflected a "limitation imputed to the legislature on the basis of which Courts can say that the parliament never intended to authorise that kind of decision. After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense."
The Applicant submitted (107), in reliance upon Li, that the failure to engage with a submission made on behalf of a party infected the suspension decision with an "arbitrariness" which rendered it "unreasonable". The Applicant further submitted (108) that "in a joint Judgment, Hayne, Kiefel, and Bell JJ developed further the idea that unreasonableness is linked to irrationality and illogicality: "unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification".
The Respondent submitted (24) that: "As the High Court explained in Minister for Immigration and Border Protection v SZVFW (2018) HCA 30 357 ALR 408, where review is sought on unreasonableness grounds the Court must not stray into evaluating for itself how it might exercise the discretion entrusted by statute to the decision maker. For that reason, the test for unreasonableness may be described as "necessarily stringent" at ([11]) (Kiefel CJ), "extremely confined" (at [52]) (Gageler J adopting the language of Brennan J in Attorney General (NSW) v Quinn (1990) HCA 21 170 CLR 1, in "the realm of the extraordinary" at [70] (Gageler J) or as being expressed in "strong terms" at [135] (Edelman J)."
The Respondent further submitted (25) that: "The weight to be afforded to the evidence is a matter for the decision maker (DCP 16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at 87; questions of weight do not give rise to an error or point of law (Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 at 27)."
The Respondent also submitted that, in DCP 16, the Full Court of the Federal Court had emphasised (in the context of jurisdictional error) that: "(a) the use of expressions such as "illogicality" or "irrationality" may be no more than to strongly emphasise disagreement with someone else's process of reasoning on an issue of fact. But that does not in and of itself establish jurisdictional error [83]; (b) the use of such expressions may be little more than a contrivance to shoehorn arguments about the merits of the decision maker's conclusion into the category of jurisdictional error, but that is to descend into impermissible merits review [84]; (c) differences of degree, impression and empirical judgement between the approach and reasoning of the decision maker as compared with the opinion of a court undertaking judicial review do not establish illogicality or irrationality. There is a high threshold. The question is whether no rational or logical decision maker could arrive at the relevant decision on the evidence before the decision maker [85]; (d) the weight that the decision maker afforded to each aspect of the evidence was a matter for it to determine in the light of the evidence and submissions before it [87]."
Having regard to the authorities to which Counsel for the parties referred the Tribunal, it is accepted that the test of legal unreasonableness is whether the decision of the Respondent is one which no rational or logical decision maker could arrive at on the evidence before it, which may be established by an absence of evident and intelligible justification for such decision.
As observed earlier, the present evaluation is necessarily by reference to the grounds of appeal upon which the Applicant continues to rely. Although not particularised in the grounds of appeal, the matters which are said, cumulatively, to establish an arguable case of legal unreasonableness are not in doubt, in the light of the careful and thorough oral clarification of the Applicant's written submissions by his Counsel.
Under the heading "Section 150 Proceedings", (10 to 47), the Applicant articulated some of the particular complaints which were asserted to establish an arguable case of legal unreasonableness. Having referred (11 to 15) to previous notifications and the anonymous notification of 10 February 2022, the Applicant submitted (16) that "the "evidence in the possession of the Respondent was not identified, nor was a basis for the asserted knowledge, nor the subject matter in respect of which it was contended that the false and misleading statements would be made (however an available inference is that the false and misleading statements would concern the domestic violence and assault charges)". It was thus submitted (17) that, "notwithstanding those deficiencies in the notification (the Delegates appeared to be easily persuaded that Dr Chakraborty was being misleading" for reasons which were later advanced. Nothing to which the Tribunal has been referred suggests that the decision to suspend the Applicant was ultimately reliant upon the anonymous notification, or that its decision with respect to the notification was irrational or illogical.
Although, as the Applicant submitted (18), the notification of 10 February 2022 may not have related to Dr Chakraborty's practice of medicine, as observed earlier, no part of the decision of the Respondent was reliant upon any finding of "impairment", or other aspects of the Applicant's competence in the practice of medicine.
The submissions with respect to the Applicant's explanation for delay in notifying AHPRA of the charges against him in October 2021 was known to, and taken into account by the Respondent, albeit, as its reasons suggest, not to the detriment of the Applicant.
Submissions were made with respect to the Applicant's admissions in relation to charges arising from his former domestic relationship. The Respondent was aware of, and took into account, each of the matters to which submissions on his behalf referred (21 to 24).
A number of submissions were made with respect to the Applicant's decision not to tell Dr Samuels about his incarceration on the night of 30 January 2022 when he saw him on 1 February 2022. No factual matter referred to by the Applicant (29 to 30) was not accurately recorded by the Respondent, as the Applicant's submissions make clear. The Respondent may have drawn other inferences in reliance upon those facts but, as the authorities make clear, without more, that cannot advance an unreasonableness challenge.
It can reasonably be inferred from its reasons that the Respondent accepted the Applicant's explanation for failing to disclose his arrest and overnight detention to Dr Samuels. As the Respondent's reasons also confirm, its concern with respect to the Applicant's lack of disclosure of his psychiatric history went to the validity of the conclusion of Dr Samuels that he could "find no evidence that Dr Chakraborty is suffering from an impairment within the meaning of the National Law", as he was "not given the benefit of all relevant information required to form an opinion." That finding was not dependent upon the Applicant's reasons for, or motives in, not disclosing those matters.
The primary facts upon which the Respondent drew the inferences complained of are not disputed. The Respondent did not go beyond, or need to go beyond being concerned about the lack of disclosure of the Applicant's psychiatric history. A balanced reading of the reasons of the Respondent makes clear that the concerns recorded by it related to the Applicant's failure to provide relevant information to Dr Samuels. The highest the findings reached in relation to the conduct of the Applicant with respect to non-disclosure was the "possibility that Dr Chakraborty deliberately omitted information for his own benefit, given that he said he was aware that the purpose of the interview (with Dr Samuels) was a "mental state assessment"".
The Respondent also relied upon the admitted fact that the Applicant had "failed to reveal to his employers that he is subject to a twelve month CRO, formerly known as good behaviour bond", and its concern that the Applicant "used the excuse of his employers not understanding the difference between an ADVO and CRO to justify his choice". The Respondent found that the Applicant appeared to have a "habit of minimising or withholding important information" in reliance upon the evidence of the Applicant. The ultimate finding of the Respondent in this regard was that it had "concerns around Dr Chakraborty [sic] ability to learn from his mistakes" and concern that he "remains unaware of appropriate boundaries (both professional and personal)".
In the context of non-disclosure of information to Dr Samuels, the Applicant submitted that "plainly, attempts could have been made to contact Dr Samuels prior to the conclusion of the s 150 hearing" inferentially suggesting that the Respondent should have done so. The nature of the hearing before the Respondent, and absence of any attempt by or on behalf of the Applicant to question Dr Samuels during the hearing, militate against accepting that anything connected with the evidence of Dr Samuels would advance an unreasonableness challenge to its decision. Potentially the more significant point, as Counsel for the Applicant submitted, is that the Respondent became aware of these matters as a result of disclosures to it by the Applicant. However, the essentially benign findings of the Respondent with respect to these matters, and absence of a finding of impairment by Dr Samuels limit the extent to which this may advance an unreasonableness challenge to its decision.
It is difficult to see how anything to which the Applicant has referred (39 to 41) could support his contention that any consideration of the "presumption of innocence" by the Respondent was illogical or irrational, or that the Respondent failed to provide an evident and intelligible basis for its decision with respect to the Applicant's limited responses to its questions, and reasons for them. As the Respondent recorded, the Applicant had entered pleas of guilty with respect to two of the three relevant charges, and admitted the substance of the third. The role of the presumption of innocence in the s 150 proceedings appears illusory in those circumstances.
The Applicant's submission (43) that "How the medical history of Dr Chakraborty of experiencing acute stress when completing examinations in 2015-16 and, following the theft of his and his wife's property whilst visiting the United States of America in September 2019 could affect an assessment by Dr Samuels of the question of impairment at the time of the consultation is neither apparent nor the subject of explanation" is factually well founded. However, apart from recording that as a matter of background, it is difficult to suggest that it influenced the decision of the Respondent, or infected it with illogicality or irrationality.
The Applicant further submitted that "In short, the approach of the Delegates to the issue (of the issues was replete with error and informed by suspicion) (if not a prejudice grounded in the adamant terms of what was described as the "current notification". Without particularisation or elaboration, this complaint appears to assert, or imply apprehended bias.
Nothing to which the Applicant has referred the Tribunal suggests that the Respondent was influenced by the terms of the anonymous notification which, it is not in doubt, gave rise to the s 150 proceedings. Nor did the Respondent make findings in the terms asserted by the Applicant in this context. Nothing to which the Applicant has referred establishes "prejudice" whether "grounded" in the manner asserted or otherwise, or other matters which might establish an arguable case with respect to either of the two limbs identified in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337.
Under the heading "The issue of health and safety" the Applicant submitted (57) that it could not be said that it was "appropriate to take any action for the protection of the health and safety of any person or persons (nor could it be said that the required state of satisfaction could be reached)". It is not understood by the Tribunal, or suggested by either party in the present application, that the suspension decision was based upon such concerns.
The Applicant (59) relied upon a "suspicion that Dr Chakraborty might pose a risk to patients" in reliance upon statements by a member of the Respondent that "Whilst we don't have any indigents of patients that we are aware of, should your emotional arousal issues happen, you know, there is the potential risk to patients as well". Statements made during the course of proceedings do not necessarily result in acceptance of the matters identified in such statements, or inferences or conclusions arising from them, or vitiate acceptance of allegations, or inferences drawn with respect to a particular issue. It is difficult to see how, in the context of the s 150 hearing, and on the admitted facts of the matter, questions of the kind complained of, or answers to them, could advance an unreasonableness challenge. That is suggested to be particularly so when regard is had to the inferences drawn or conclusions reached by the Respondent which were pivotal to its decision- the concern that the Applicant "remains unaware of appropriate boundaries (both professional and personal)", based upon his "response to stress and insight into his own behaviour along with his poor decision making when stressed".
The Respondent further recorded that, although the Applicant "has been diligent in attending his psychologist and is well motivated to make changes to the way he manages strong emotions, his learning and insight is at a developmental stage. We believe behavioural changes will take longer to establish themselves. His most recent domestic violence incident suggests that there is still some way to go until he can achieve some reliable control". In the light of those reasons, it is difficult to suggest illogicality, irrationality, or the absence of an evident and intelligible basis for the suspension decision.
As is not in doubt from the reasons of the Respondent, the inferences or conclusions referred to above were made in reliance upon undisputed evidence with respect to domestic violence proceedings, criminal law violations, some, albeit explained, psychiatric history, which was not disclosed to Dr Samuels, the prior admitted notifications with respect to improperly accessing a health facility, and the Respondent's assessment of the evidence which the Applicant gave before it. Although, in the context of a s 159 appeal, these matters may lead to different findings and inferences, and the Respondent may, in reliance upon the facts before it have come to different decisions in the s 150 proceedings, it is difficult to see how anything referred to by the Applicant in this context advances an arguable case of unreasonableness.
Under the heading "The issue of the public interest" the Applicant made a number of submissions in support of his ultimate contention that the decision of the Respondent was irrational or illogical. The Applicant submitted (71), correctly, that the "most significant factor" relied upon by the Respondent in deciding to suspend his registration was the "public interest in the medical professional not condoning domestic violence (including allegations of such behaviour)". As is not in doubt, the decision of the Respondent did not turn solely upon "allegations" but was significantly reliant upon formal and informal admissions of conduct constituting domestic violence by the Applicant, and the other matters of concern recorded by the Respondent. The admissions of the Applicant identified in paragraph 23 of these reasons were also able to be relied upon in this context.
During the s 150 hearing, the Respondent referred to a number of women who have been active in the campaign against domestic violence in recent years before asking questions of the Applicant with respect to "a general patient who finds out, to a patient who, themselves, is a victim of domestic violence" (73). The Applicant submitted (74) how Ms Batty could be "a very significant issue" to the task before the Tribunal is not at all apparent and that "hypothetical enquiries" of the Applicant "truly form no legitimate part of a task that the Delegates were required to discharge (the public interest could not be measured in such a way - nor by Dr Chakraborty's response to the question - or questions)" (75).
It is difficult to accept that the matters to which the Applicant has referred demonstrate that asking the Applicant the questions complained of, and his responses to them, was "irrelevant" to the task before the Respondent, albeit what weight or significance it attached to the answer to any such questions involved a considerable degree of decisional freedom. Moreover, the Respondent did not find that the attitude of the Applicant to domestic violence was cause for concern in the public interest.
This complaint inferentially challenges the adequacy of the reasons for the decision of the Respondent (77-78), and arguably, by its failure to address the assertedly critical issue discussed below, potentially a constructive failure to exercise its jurisdiction pursuant to s 150 of the National Law (Resource Pacific v Wilkinson [2013] NSWCA 33 at [42]-[58]), or, relevantly for present purposes, the Respondent's reasons for the suspension decision failing to reveal an evident and intelligible basis for its decision.
The submissions on behalf of the Applicant (77 to 90) sought to advance what the Tribunal perceives emerges as the major basis of the Applicant's grounds of appeal, as encapsulated in the opening contention "where did the delegates identify the risk that they considered Dr Chakraborty's continued practice of medicine posed to the public" (77) and "How was it considered that the unidentified risk was unacceptable" (78).
Although, with respect to his Counsel, submissions based upon criminal charges, allegations or convictions of the kind with which this case was concerned, "without more" might not "warrant" suspension, a balanced reading of the Respondent's reasons for the suspension decision reveals that there was "more" upon which it relied (79) in reaching its decision.
The Applicant relied upon the statement of the Tribunal in Coutinho v Dental Council of NSW [2018] NSWCATOD 98 at [49] refusing to "accept that because the offence was committed in a domestic context, that of itself automatically means that it is in the public interest that the appellant be suspended from the practice of his profession. Determining whether the public interest requires a suspension of a professional's registration involves a balancing of matters including the nature of the offence, whether the conduct giving rise to the offence would lead to the erosion of confidence by the public or patients in the relevant profession, as against the draconian nature of the suspension and its impact on the profession involved and his or her patients". This "balancing" exercise, the Applicant contends the Respondent failed to undertake, or, if it did, to provide an evident and intelligible basis for its outcome.
The Applicant submitted, by reference of a number of authorities (84 to 86) that "It cannot be demonstrated that the Delegates at all considered whether permitting Dr Chakraborty to continue to practice medicine posed an unacceptable risk to the public interest" (87), and that the Delegates "appear to have misunderstood the task before them" in that s 150 proceedings were not "at all in the nature of disciplinary proceedings". Those contentions were sought to be supported by the statement by Beech-Jones J in Berger v Council of the Law Society [2013] NSWSC 1080 at [16] that "a relatively high degree of satisfaction that suspension should be ordered pending the pursuit of a complaint" was required before that step could be taken, with which Boland ADCJ agreed in Hill v Medical Council of NSW [2019] NSWCATOD 52 at [48]..
The Applicant submitted (85), by reference to the decision in Medical Board of Australia v Liang Joo Leow (2019) VSC 532 that: "Public confidence is won - or lost - gradually, as the cumulative effect of the experiences of thousands of individuals in their dealings with medical practitioners over many years. The decision to register a particular person to practice medicine is unlikely, in our view, to have any material or lasting effect on the established reputation of the medical profession as a whole. It is not irrelevant that the standing of the medical profession in this community is very high."
In support of his contention that it "cannot be demonstrated that the delegates at all considered whether permitting Dr Chakraborty to continue to practice (sic) medicine posed an unacceptable risk to the public interest" [87], the Applicant asserted that the Respondent "misunderstood the task before them [88] and failed to consider alternatives to suspension [89]-[90].
The Applicant complained (90) that no alternative proposed course of action (other than suspension) was nominated by the Respondent, and that there was also no identification as to why suspension (as opposed to the imposition of conditions) was determined to be appropriate. The Respondent asked the question, and considered "Are there conditions that could be imposed on the practitioner's registration that would sufficiently mitigate concerns in relation to the public interest?"
In the course of submissions, which were not made by the Applicant's present Counsel, it was submitted (Transcript p87 lines 3-12) that the Applicant: "should be put into the Council's health programme. He should be required to see a Council appointed psychiatrist regularly and that Council appointed psychiatrist should be required to report to Council on his progress in dealing with the issues that Dr Samuels raises. That will also assist the doctor, supplemented by his engage with his psychologist who he has been seeing regularly, to be satisfied that his personality vulnerability is not giving rise to a risk of danger to patients."
The Applicant's then Counsel ultimately submitted (Transcript p87 lines 32-37) that: "If the Council were to put him the health programme and have the psychiatrist seeing him and reporting to Council, that would satisfy, or should satisfy the Council there is no risk to public health and safety and, as I say, there is no issue with the public interest."
Other than the Applicant being put into the "health programme", nothing was submitted to the Respondent by way of the imposition of conditions upon the Applicant's registration.
The Respondent clearly considered the submission on behalf of the Applicant with respect to conditions, as its reasons confirm. Reference has earlier been made to the reasons of the Respondent with respect to failures to disclose, minimising matters of significance and prior notifications and the finding of the Respondent that: "Although he has been diligent in attending his psychologist and is well motivated to make changes to the way he manages strong emotions, his learning and insight is at a developmental stage. We believe behavioural changes will take longer to establish themselves. His most recent domestic violence incident suggests there is still some way to go until he can achieve some reliable control. We determined that there were no appropriate conditions we could impose that would mitigate the concerns arising from the public interest and suspended Dr Chakraborty's registration."
As with other complaints made by the Applicant, although other findings or inferences may have been open on the evidence before it, it is difficult to see illogicality or irrationality in the reasoning of the Respondent with respect to the issue of conditions.
In submissions in the present application, the Applicant's learned Counsel referred to a statement by Dr Krishnan Gupta, Respiratory and Sleep Physician, Manning Base Hospital, and Dr Peter Brude OAM, General Physician, Manning Base Hospital, dated 10 February 2022, in which it was said (agreed bundle p124) that the services which the Applicant provides: "are not available elsewhere in Taree. The nearest hospital where patients could find such services is at Port Macquarie, which is over 80 kms away, or at John Hunter Hospital which is 2.5 hours' drive away. If Ahmed is unable to provide these much needed services at Manning Base Hospital, many patients would face an extended delay in having a tissue diagnosis from a biopsy. This will significantly delay their treatment and likely outcomes."
The Applicant submitted that consideration of the public interest required that the interests of these members of the public be considered, but that they had not been, or, if they had, the Respondent had failed to provide any indication of how they had been considered in the assessment of risk to the public.
In submissions in reply (37) the Respondent relied upon asserted differences in statutory language in Liang Joo Leow and asserted, correctly, that the case was concerned with "whether it was appropriate to suspend the registration of a person who had merely been charged with certain offences, which he denied". The Respondent also relied upon the statements by Niall JA in that case that it was "open" to the Tribunal in that case to conclude that suspension was not necessary but that there was no general rule that suspension was inappropriate, even where the allegations are untested and unproven. The Respondent submitted that the decision emphasised the broad "area of decisional freedom" of the decision maker. There is a material distinction between taking into account admitted domestic violence, or other criminal conduct, and taking into account unproven disputed allegations in that regard. The Respondent did not rely upon any matter with respect to domestic violence which had not been formally or informally admitted by the Applicant.
It was further submitted that violence against women in domestic situations is "well recognised in the Australian community as abhorrent" and that conduct of that kind can rationally be found to render a person unsuitable to practice (Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 at [87]).
In O'Sullivan v Farrer [1989] HCA 61, 168 CLR 210 at [13], the High Court said that the expression "in the public interest" "when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters" and that the use of the term therefore "requires a decision maker to take into account a range of considerations that are particular to the case being determined and which, while not necessarily being explicitly set out, relate to the objects of the particular statute".
In McKinnon v Secretary, Department of Treasury [2005] FCAFC 142 at [9]-[12], Tamberlin J said that the expression "in the public interest" is one which "does not have any fixed meaning. It is of the widest import and is generally not defined or described in the legislative framework, nor, generally speaking, can it be defined", but "directs attention to that conclusion or determination which best serves the advancement of the interest or welfare of the public, society or the nation and its content will depend on each particular set of circumstances".
In Hogan v Hinch [2011] HCA 4 at [4] French CJ said that the expression "public interest" when used in a statute "derives its content from the subject matter and scope and purpose of the enactment in which it appears".
In BHL 19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94 277 FCR 420 at [134] Bromwich J (with whom White J agreed) stated that there was an area of "decisional freedom" "where reasonable minds might differ as to the correct decision or outcome" and, further, that "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 provisions of the statute which confer the relevant power". It is not in doubt that s 150 of the National Law is that provision. The considerations which inform its exercise are discussed later in these reasons.
In resisting the legal unreasonableness challenge to the decision of the Respondent, it was submitted (27) that the "public interest" for the purpose of s 150 may "encompass the goal of protecting the reputation of the profession and the trust of the public in the profession, quite apart from any identified safety concerns to particular patients" in reliance upon the decision in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] per Meagher JA. That is undoubtedly so, but that does necessarily remove the obligation for a suspension decision to reveal an evident and intelligible nexus between the conduct of the practitioner and the unacceptable risk which it poses to the public interest.
It was further submitted by the Respondent that, "where health professionals are convicted of criminal offences involving violence, and particularly violence against women and children, the public's ability to entrust their care to those health professionals may be imperilled if the practitioner continues to practice" in reliance upon the decision in Health Care Complaints Commission v Lidman [2020] NSWCATOD 48 at [10]-[12].
In Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 at [48] the Tribunal said that "It would be in the public interest to prevent harm being suffered by a person or persons if it could be predicated that this may occur. Of course, the public may accommodate other matters which impact on the honour and integrity of the profession generally. The Tribunal found that these issues would include convictions for a serious crime, or failing to lodge taxation returns for an inordinate period", and reiterated, at [56][7][f], that medical practitioners "exhibit traits consistent with the honourable practice of an honourable profession. Integrity, trustworthiness and high moral and ethical values are an integral part of the practice of medicine" and that the public "must have confidence that medical practitioners who treat them exhibit these traits".
It was submitted by the Respondent, correctly in the Tribunal's view, that the public interest could not only be satisfied in cases where the conduct engaged in by a medical practitioner arose in the course of or in relation to the practice of medicine. That proposition the Applicant does not dispute, but sought to distinguish a number of cases relied upon by the Respondent, and to differentiate between such cases and the present, which undoubtedly does not arise from conduct engaged in by the Applicant in relation to the practice of medicine.
In seven numbered paragraphs of written submissions (31-42), to which Counsel for the Respondent spoke during oral submissions, the "particulars" of the Applicant's legal unreasonableness claim were addressed. The contention with respect to the Respondent's consideration of the Applicant's failure to disclose to Dr Samuels that he had spent the previous night in custody, been bailed and was facing Court in relation to the alleged breach of ADVO was asserted to be a possibility which the Respondent was entitled to consider (31 to 32). That submission is accepted.
The asserted error of the Respondent with respect to the withholding of psychiatric evidence (33 to 34) was emphasised by the fact (34(c)) that the additional information "was only provided by the Appellant at the hearing itself". It was submitted that, in the circumstances, it was open to the Respondent to make orders at the conclusion of the hearing, rather than adjourn the hearing to seek further information from Dr Samuels. It was open, and remains open, to the Applicant to seek further psychiatric evidence, from Dr Samuels or someone else and, pursuant to s 150A, apply to the Respondent for a review of its decision.
The Respondent submitted with respect to the asserted violation of the presumption of innocence (35 to 36), that the hearing of the Applicant's charge in relation to the ADO was scheduled for 15 March 2022 (36(c)) but that the Applicant "has not yet disclosed the outcome of that hearing, but does not say that a not guilty plea was entered". This topic arose in greater detail during oral submissions. It was then indicated that the Tribunal was disinclined to draw any inferences adverse to the Applicant by reason of the absence of evidence, which he was best placed to adduce, with respect to what occurred in the Local Court on 15 March 2022. Either party could have procured production of the Local Court record for that day. The issue does not either assist or impede the case of either party to the present application.
The Respondent submitted (38 to 39), correctly, that nothing to which the Applicant has referred establishes, or tends to establish, anything analogous to actual or apprehended bias.
The Respondent also engaged (42) with the Applicant's complaint about "a supposed delay in the provision of reasons for the Council's decision". As discussed with Counsel for the parties, if the delay in producing the reasons was inordinate, and the Tribunal does not accept that it was, that would not of itself assist with a legal unreasonableness challenge to the decision, the issue being "the effect of the passage of time on the quality of the decision-making" (Monie & Others v Commonwealth of Australia [2005] NSWCA 25; 63 NSWLR 729 at [123]).
The Tribunal is unable to accept that the timing of the delivery of the reasons for the suspension decision, which was far from inordinate, impacted on the quality of the decision-making of the Respondent. The fact that the Applicant has not amended his grounds of appeal in the two weeks which have passed since the reasons were delivered provides further support for declining to accept that this factor could advance the Applicant's unreasonableness challenge.
The authorities to which Counsel for both parties referred recognise that certain types of conduct unrelated to the practice of medicine can, of themselves, enliven the power to suspend under s 150 in the public interest. The Respondent does not appear to suggest that this is such a case. The authorities also abhor domestic violence in all its forms and degrees of objective seriousness. The authorities also establish that the fact that a medical practitioner is guilty of, admits or is accused of domestic violence does not automatically render it in the public interest that he or she be suspended. Each case turns on its own facts and circumstances. The issue for determination on appeal in this case is essentially whether, by the asserted failure to reveal whether, and if so, how the Respondent undertook the balancing exercise recognised in the authorities referred to above, its decision was infected with unreasonableness, or whether, as the Respondent submitted, its reasons revealed an evident and intelligible basis for a decision which was neither irrational nor illogical.
In order to determine whether the Applicant establishes an arguable case of legal unreasonableness, in that the suspension decision was irrational or illogical, in that no rational or logical decision maker could have arrived at it on the same evidence, it is instructive to consider "the task" which the Respondent was obliged to undertake pursuant to s 150 of the National Law.
In Medical Council of New South Wales v Smithson [2021] NSWCA 53 the Court of Appeal observed, at [2]): "The subject matter, scope and purpose of s 150 makes clear that it is a protective provision with two independent limbs. The touchstone for the exercise of the Council's role under s 150(1) to make an order suspending the practitioner's registration or imposing conditions on it is that the Council be satisfied that it is appropriate to do so for (ii) the protection of the health or safety of any person or persons (the first limb) or (ii) that the action is otherwise in the public interest (the second limb)."
The Court further observed that the two limbs "may overlap but the public interest is not subsumed in the first limb", the two limbs being "disjunctive; satisfaction of either will suffice to trigger the obligation imposed by s 150".
The Court further observed that: "because the circumstances in which action under s 150 may be undertaken include that there may be a continuing dispute as to the relevant facts and that investigations into complaints concerning the practitioner by bodies such as the HCCC may not have been completed or even commenced, the Tribunal is not required to make conclusive findings of fact based on the material before it".
The Court reiterated at [8], that, as s 150 is a "protective provision, it is appropriate ordinarily for the Tribunal, in deciding whether it is satisfied that it is appropriate to make an order under the first or second limb, to make an assessment about the nature and degree of risk to the health or safety of any person or persons or to the public interest (in the sense of the chance of the suggested harm being realised and the consequences of the suggested harm being realised in the sense of the chance of the suggested harm being realised) and the consequences of the suggested harm being realised (in the sense of the seriousness of the harm that will ensue if the risk is realised)", and that [9], the "essential question" with respect to s 150 to address is "whether allowing the medical professional to practice, or to practice with certain conditions, involves an unacceptable risk to the health and safety of the public, or otherwise involves an unacceptable risk to the public interest".
Under the heading "Are the circumstances such that it is otherwise in the public interest that action be taken that affects the practitioner's practice?", the Respondent in this case recorded: "In a four-month period between September 2021 and January 2022 Dr Chakraborty was involved in two separate domestic violence incidents with his wife resulting in three criminal charges. Two of these he has subsequently plead (sic) guilty to. He is bailed to appear in Manly Local Court on 15 March 2022 to face the third charge. An ADVO and CRO are current. We consider that this gives rise to the need to act in the public interest".
The Tribunal has not been referred to, or discovered for itself, further express exposition of the Respondent's consideration of the public interest. As noted earlier, although not expressly referred to, the matters identified in paragraph 23 of these reasons could reasonably have been relied upon in the assessment of the public interest.
Although a number of authorities have engaged with the public interest in the context of the National Law, none appears to have ultimately turned on the point of law which the present appeal potentially raises. In the light of the authorities referred to above, the Tribunal finds that the Applicant has demonstrated that he has a reasonably arguable case of legal unreasonableness to agitate on appeal in relation to the public interest foundation of the suspension decision. Attempting to more specifically, or quantitatively assess the apparent merit of the Applicant's appeal, even if that is possible, is unnecessary.
In the circumstances recorded above, it is necessary to consider the discretionary factors which emerge from the authorities which have been briefly reviewed earlier in these reasons. The first of those is the balance of convenience.

Chakraborty v Medical Council of NSW

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