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[2017] WASC 264
General information, not legal advice.
Supreme Court of WA
2017-09-08
Allanson J
Original judgment source is linked above.
1 ALLANSON J: Mr da Horta is a podiatrist. In November 2016, he was advised that the Podiatry Board of Australia had decided to caution him under the Health Practitioner Regulation National Law. The power to caution may be exercised if the Board reasonably believes that the way a registered health practitioner practises their health profession, or the practitioner's professional conduct, is or may be unsatisfactory.
2 Mr da Horta applied for judicial review of the Board's decision on two grounds:
(1) that the decision was manifestly unreasonable; and
(2) the Board denied him natural justice by relying on material that it did not disclose to him.
3 The Health Practitioner Regulation National Law is in force in Western Australia as a schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA). In these reasons, all references to legislation are to the Health Practitioner Regulation National Law unless otherwise stated.
5 The application was filed with the affidavit of Alexandra Rae Tomasini, dated 2 February 2017. Ms Tomasini is a solicitor with day to day conduct of the application. She attaches:
(1) the original letter, dated 24 November 2015, from the Australian Health Practitioner Regulation Agency (AHPRA) which notified Mr da Horta of the complaint;
(2) Mr da Horta's response, although not the accompanying documents;
(3) a letter from the Board to Mr da Horta dated 14 January 2016, advising that it had decided to investigate Mr da Horta's performance under s 160 of the National Law;
(4) a further letter from the Board to Mr da Horta dated 28 July 2016, in effect advising that the investigation was continuing;
(5) a further letter from the Board to Mr da Horta dated 7 September 2016, giving notice of the Board's proposed action;
(6) a submission on behalf of Mr da Horta to the Board, and enclosed documents;
(7) a letter from the Board, dated 30 November 2016, advising Mr da Horta of the Board's decision.
6 Mr da Horta relies on his own affidavit, dated 6 April 2017, in which he sets out the practical implications of the decision to caution him, including that he will have to notify his current insurer, and will be required to disclose the decision to caution him if asked about any complaints or disciplinary action.
7 The third affidavit is of Jerry Nektarios Rompotis, dated 12 April 2017. Mr Rompotis is currently with AAI Limited, trading as Vero Insurance. He confirms that Mr da Horta will be required to disclose the respondent's decision on his application to renew his policy of insurance. The Board's decision may be a relevant factor in the renewal of Mr da Horta's insurance, but it is one of several factors.
8 The Board relies on the affidavit, sworn on 2 May 2017, of Krystian Kamil Hemsley, a Case Manager and Investigator employed by AHPRA. Mr Hemsley has been the file manager for this matter since 14 January 2016. His affidavit primarily attaches relevant documents. He also deposes that at its meeting on 15 November 2016, the Board 'had access to' the clinical notes provided by Mr da Horta and the Code of Conduct. He does not say whether the Board had access to any other material.
9 On 24 November 2015 the Australian Health Practitioner Regulation Agency (AHPRA) sent Mr da Horta a letter advising him that it had received a 'notification', in effect a complaint about his conduct as a registered health practitioner. The notification was from a patient on whom Mr da Horta had performed surgery in 2013. AHPRA received and managed the complaint on behalf of the respondent Board.
10 The notification was headed 'Medical Negligence Claim - Surgery by Mario Horta'. The complainant's description of what happened is long, but most of it relates to the period after Mr da Horta operated on her foot. It is not in contest that the complaint was about the result of the surgery and did not deal with the adequacy of the consultation, discussion of risks, and the process of obtaining consent.
11 The Board received the notification on 28 October 2015. In its letter of 24 November, the Board provided Mr da Horta with a copy of the notification, and identified the issue as 'whether the surgery you performed on 17 May 2013 to lengthen [the complainant's] Achilles tendon was performed adequately'.
12 The Board invited Mr da Horta to provide a written response and any information he considered relevant. It requested a copy of his clinical notes, copies of any relevant letters and summaries of any other relevant information.
13 Mr da Horta responded on 9 December 2015. He summarised the history of his treatment of the complainant, including his review of x-rays and ultrasounds, and his findings on examination. He did not then deal with whether he had discussed alternative treatment options and risks, or discuss the 'consenting process'. That omission is unsurprising, when the nature of the complaint had been described as whether the surgery was performed adequately. Mr da Horta produced his clinical file which included:
(2) his initial letter to the complainant regarding her first appointment;
(3) notes from his first appointment on 31 January 2013;
(5) a report to Mr Ireland dated 16 February 2013, following the appointment on 31 January 2013, which included reference to an MRI as the 'next step';
(6) a further medical imaging report dated 13 March 2013 (on referral from Mr da Horta); and
(7) a telephone note of the conversation with the complainant on 19 March 2013;
(8) documents relating to the surgery performed by Mr da Horta on 17 May 2013.
14 The documents included a form, signed by the complainant, consenting to the surgery.
15 The Board wrote to Mr da Horta, by letter dated 14 January 2016, advising that it had decided to investigate his performance under s 160 of the National Law. Mr Hemsley was appointed as investigator. The Board did not qualify what it had earlier written; that is, the issue was whether the surgery was performed adequately.
16 The Board wrote again on 28 July 2016, advising that the investigation was continuing. It did not, during this period, speak to Mr da Horta or advise him that the issue for investigation was broader.
17 On 7 September 2016, the Board wrote to Mr da Horta in these terms.
Notice advising you of proposed action.
Recently, we wrote to advise you that the Podiatry Board of Australia (the Board) was investigating a notification from [the complainant] about you. Specifically, the Board wanted to consider the following issue:
In about 32% of all matters that are investigated, the National Board decides it has enough information to take appropriate action to keep the public safe.
On 26 August 2016, the Board considered the information it had available through the notification process. The Board formed a view that the way you practised is or may be unsatisfactory and is proposing to caution you in the following terms:
'The Podiatry Board of Australia cautions Mr Mario da Horta to ensure that in future he will conduct an appropriate initial assessment of his patients, explain all available alternate (sic) treatment options, explain risk of proposed treatment, and communicate effectively in accordance with section 2.2 of the Podiatry Board of Australia's Code of Conduct (the Code), and further, ensure that a more thorough consenting process is conducted prior to treatment pursuant to section 3.5 of the Code, and maintain adequate clinical records in accordance with section 8.4 of the Code.'
The Board is proposing to take this action because:
A caution is intended to act as a deterrent so that you do not repeat the conduct. It will not be recorded on the national register.
18 Although it never stated it explicitly, the Board appears to have decided to take no further action in relation to whether the surgery was performed adequately. The Board was now considering Mr da Horta's communication with the complainant and the 'consenting process'. In essence, the focus had shifted from the surgery and its outcome to the initial consultation.
19 Mr da Horta was told that he had the opportunity to make a written or verbal submission to the Board by 23 September 2016. He was also requested to provide the details of his employer. The letter further advised that it would carefully consider any submission.
20 Mr da Horta responded through his solicitors with a detailed submission. In general terms, the submission was that there was no evidentiary basis for the proposed action by the Board.
21 Relevantly, it was submitted on behalf of Mr da Horta that:
(1) During the initial consultation he reviewed x-ray and ultrasound results together with the referral letter and carried out a thorough history and physical examination.
(2) The complainant was referred by another practitioner, Mr Ireland, who advised in the referral letter that 'she had seen previous health professionals without any real result yet'. Mr Ireland also advised that the complainant had been provided orthoses, and he had arranged guided injections, with no difference to her pain levels.
(3) he had spoken 'at length' about treatment options and specifically discussed alternatives, including non-operative treatment and no treatment at all.
(4) Mr da Horta explained during the consultation that there were 'inherent risks in all surgical procedures' and the risks included 'post-operative infection, delayed healing, scarring, over correction of deformity or return of deformity'.
(5) The complainant had advised Mr da Horta that she did not want to pursue further nonsurgical treatment as previous nonsurgical treatments had failed.
22 In support of his submission that treatment options had been discussed, Mr da Horta provided a consent form that the complainant signed on 4 May 2013, and which recorded:
The nature of the operation(s), its alternatives, including non-operative treatment and no treatment at all, have been explained to me.
These risks may include post-operative infection, delayed healing, scarring, further correction of the deformity or return of deformity.
23 The complainant lives in Albany, so the consent form had been provided to her by mail. There was also a record of two telephone calls to her from Mr da Horta, but no record of what was said in them.
24 Mr da Horta did not simply rely on the complainant's signing of the consent form but submitted that he had discussed these matters with the complainant and had communicated 'clearly and openly with [her] about the treatment options, the risks and possible benefits of surgery'.
25 The objectives and guiding principles of the National Law and the national registration and accreditation scheme are set out in s 3. The objectives of the scheme in s 3(2) include:
(a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered...
The guiding principles of the national registration and accreditation scheme are as follows
(a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way ...
26 National Health Practitioner Boards are established for various health professions, including podiatry: s 31. The functions of National Boards include to oversee the receipt, assessment and investigation of notifications about registered health practitioners: s 35(1)(g).
27 By s 39, a National Board may develop and approve codes and guidelines
(a) to provide guidance to the health practitioners it registers; and
(b) about other matters relevant to the exercise of its functions.
28 A code approved by a National Board must be published on the Board's website: s 40. By s 41:
An approved registration standard for a health profession, or a code or guideline approved by a National Board, is admissible in proceedings under this Law or a law of a co regulatory jurisdiction against a health practitioner registered by the Board as evidence of what constitutes appropriate professional conduct or practice for the health profession.
29 The Podiatry Board published its present Code of Conduct in March 2014. I was advised from the bar table, and it was not disputed, that the 2014 Code replaced an earlier Code in substantially the same terms.
30 The Board in this matter was acting on a voluntary notification. By s 144(1), a voluntary notification about a registered health practitioner may be made to AHPRA on grounds, including
(a) that the practitioner's professional conduct is, or may be, of a lesser standard than that which might reasonably be expected of the practitioner by the public or the practitioner's professional peers;
(b) that the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the practitioner's health profession is, or may be, below the standard reasonably expected;
31 Section 144(1)(b) reflects the definition of unsatisfactory professional performance in s 5:
unsatisfactory professional performance of a registered health practitioner, means the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience;
32 By s 146, a notification must include particulars of the basis on which it is made. AHPRA must refer the notification to the National Board that registered the practitioner: s 146. A National Board must conduct a preliminary assessment of the notification: s 149. Unless the Board decides to take no further action (in circumstances specified in s 151), it must give written notice of the notification to the practitioner: s 152.
33 Part 8 div 8 provides for investigation of a health practitioner if the Board decides it is necessary or appropriate because the Board has received a notification about that practitioner. The Board must give the practitioner written notice about the investigation which must advise 'the nature of the matter being investigated': s 161. It must also, at not less than three monthly intervals, give written notice of the progress of the investigation.
34 As soon as practicable after completing an investigation, an investigator must give a written report about the investigation to the Board. The report must include the investigator's findings and recommendations about any action to be taken: s 166. By s 167:
After considering the investigator's report, the National Board must decide
(a) to take no further action in relation to the matter; or
(b) to do either or both of the following
(i) take the action the Board considers necessary or appropriate under another Division;
(ii) refer the matter to another entity, including, for example, a health complaints entity, for investigation or other action.
35 Part 8 div 10 provides for action by a National Board. Section 178(1) states:
(a) a National Board reasonably believes, because of a notification or for any other reason
(i) the way a registered health practitioner registered by the Board practises the health profession, or the practitioner's professional conduct, is or may be unsatisfactory; or
...;
and
(b) the matter is not required to be referred to a responsible tribunal under section 193; and
(c) the Board decides it is not necessary or appropriate to refer the matter to a panel.
(2) The National Board may decide to take one or more of the following actions (relevant action) in relation to the registered health practitioner or student
(a) caution the registered health practitioner ...;
(b) accept an undertaking from the registered health practitioner ...;
(c) impose conditions on the practitioner's ... registration ...
(d) refer the matter to another entity, including, for example, a health complaints entity, for investigation or other action.
(3) If the National Board decides to impose a condition on the registered health practitioner's or student's registration, the Board must also decide a review period for the condition.
36 Section 179 prescribes a 'show cause' procedure:
(1) If a National Board is proposing to take relevant action in relation to a registered health practitioner or student, the Board must
(a) give the practitioner or student written notice of the proposed relevant action; and
(b) invite the practitioner or student to make a written or verbal submission to the Board, within the reasonable time stated in the notice, about the proposed relevant action.
(2) After considering any submissions made by the registered health practitioner or student in accordance with this section, the National Board must decide to
(a) take no action in relation to the matter; or
(b) do either or both of the following
(i) take the proposed relevant action or other relevant action;
(ii) refer the matter to another entity, including, for example, a health complaints entity, for investigation or other action.
(a) a National Board is proposing to take relevant action in relation to a registered health practitioner or student; and
(b) the National Board has, in relation to the matter that forms the basis for the relevant action
(i) investigated the registered health practitioner or student under Division 8; or
(ii) conducted a health assessment or performance assessment of the registered health practitioner or student under Division 9.
37 Section 180 requires the Board to give written notice of a decision to the health practitioner and, if the decision was the result of a notification, the notifier. Section 180 applies only to a decision under s 179(2), so may not apply where the Board has investigated 'the matter that forms the basis for the relevant action' under div 8.
38 The National Law does not require the Board to give written reasons for its decision.
39 Division 13 provides for appeals from decisions of a Board. No appeal lies from a decision to caution.
40 A decision of a National Board under pt 8 div 10 may be contrasted with the decision of a panel under pt 8 div 11. A panel is required to hear a matter and decide whether a practitioner has an impairment, or has behaved in a way that constitutes unsatisfactory professional performance or unprofessional conduct: s 191. A panel must give written notice of its decision, including the reasons for the decision: s 193.
41 By s 206(2), a National Board that decides to take 'health, conduct or performance action' against a practitioner must advise the practitioner's employer. The term 'health, conduct or performance action' is defined in s 5 to include action that a National Board or an adjudication body may take in relation to a registered health practitioner or student at the end of a proceeding under Part 8. It includes the action of cautioning a practitioner.
42 The Code is structured in each clause by a statement of the relevant standard, followed by paragraphs which state in more detail what good practice involves or includes. The particular provisions to which the Board referred were:
(1) Clause 2.2, headed 'Good Care'. The standard is expressed as 'Maintaining a high level of professional competence and conduct is essential for good care'. Good practice involves (relevantly to the present matter) maintaining adequate records (par (e)), and communicating effectively with patients (par (g)).
(2) Communicating effectively is the subject of cl 3.3, and includes:
(3) Clause 3.5 provides for Informed Consent. It states:
Informed consent is a person's voluntary decision about healthcare that is made with knowledge and understanding of the benefits and risks involved. A useful guide to the information that practitioners need to give to patients is available in the National Health and Medical Research Council (NHMRC) publication General guidelines for medical practitioners in providing information to patients (www.nhmrc.gov.au). The NHMRC guidelines cover the information that practitioners should provide about their proposed management or approach, including the need to provide more information where the risk of harm is greater and likely to be more serious and advice about how to present information.
Good practice involves:
Maintaining clear and accurate health records is essential for the continuing good care of patients or clients. Practitioners should be aware that some National Boards have specific guidelines in relation to records. Good practice involves:
43 Clause 8.4 has particular importance in this matter, as the primary argument on behalf of the Board was that Mr da Horta's clinical notes from his examination of the complainant on 31 January 2013, in not recording information given to the complainant, were a sufficient basis for the Board's decision.
44 On 30 November 2016 the Board advised Mr da Horta of its decision. It stated that its decision was under s 178 and s 179 of the National Law.
45 Section 179 does not apply if the Board has, in relation to the matter that forms the basis for the relevant action, investigated the practitioner under div 8: see s 179(3). In acting under s 179, the Board must have been acting in relation to a matter other than that investigated by Mr Hemsley.
46 Its letter largely reproduces the notice given in September.
Notice of Board decision to take action
Thank you for your submission to the Podiatry Board of Australia (the Board) about its proposed action. The information you provided in your submission gave the Board important information to inform its decision about the notification.
On 15 November 2016, the Board considered your submission and decided under sections 178 and 179 of the Health Practitioner Regulation National Law (National Law) to caution you in the following terms:
'The Podiatry Board of Australia cautions Mr Mario da Horta to ensure that in future he will conduct an appropriate initial assessment of his patients, explain all available alternate (sic) treatment options, explain the risk of proposed treatment, and communicate effectively in accordance with section 2.2 of the Podiatry Board of Australia's Code of Conduct (the Code), and further, ensure that a more thorough consenting process is conducted prior to treatment pursuant to section 3.5 of the Code, and maintain adequate clinical records in accordance with section 8.4 of the Code.'
A caution is intended to act as a deterrent so that you do not repeat the conduct. It will not be recorded on the public national register.
The board's decision takes effect immediately.
47 In deciding to take a relevant action under s 178, the Board must have found that it reasonably believed that the way in which Mr da Horta had practised on this occasion 'is or may be unsatisfactory'. The Board did not express its decision in terms of reasonable belief. Mr da Horta does not contend that it failed to apply the correct standard.
48 Mr da Horta's first ground is that the decision to caution him was 'manifestly unreasonable in the sense that no reasonable decision maker could have made the decision'. In particulars, Mr da Horta identifies the findings that:
(1) he ought to have conducted a more thorough initial assessment of the complainant, including an explanation of available treatment options and in particular why a surgical approach was indicated rather than conservative treatment;
(2) he ought to have communicated clearly to the complainant the risk of any proposed treatment and the likely success/failure rate of that treatment;
(3) he ought to have conducted a more thorough consenting process to ensure that the complainant was suitably informed about the proposed treatment and possible side effects;
(4) his clinical records were inadequate in that they did not contain sufficient information about the treatment options discussed, the consenting process, and that risks of the proposed treatment were communicated to the complainant prior to her consenting to treatment;
(5) his professional performance is or may be unsatisfactory, and cautioning would act as a deterrent for similar conduct in the future.
49 For each of those findings, Mr da Horta asserts that the only material the Board had before it, to his knowledge, was the initial complaint which does not deal with these matters, and his submission. Mr da Horta submits that judicial review lies because the decision of the Board lacks an evident and intelligible justification in the material before it: see Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 [76] (Hayne, Kiefel & Bell JJ).
50 First, it is necessary to adhere to the limits of judicial review. The court is concerned only with whether the decision was within the power given to the Board, and not whether it was correct. I also accept, as submitted on behalf of the Board, that the Board comprises practitioner members and community members. In deciding to take action under s 178, it acts on the reasonable belief of the members, which may be informed by the experience and expertise of the practitioner members.
51 Second, the Board was not required to give written reasons; it was not obliged to set out findings or refer to the evidence or other material on which those findings were based. As the plurality said in Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173:
It is well settled that in the context of administrative decision-making, the court is not astute to discern error in a statement by an administrative officer which was not, and was not intended to be, a statement of reasons for a decision that is a broad administrative evaluation rather than a judicial decision. It is possible that error of law on the part of the Delegate might be demonstrated by inference from what the Delegate said by way of explanation of his decision; but it must be borne in mind that the Delegate was not duty-bound to give reasons for his decision, and so it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate [25].
52 The Board's letters of 7 September and 30 November 2016 cannot be analysed as a statement of reasons.
53 Third, the starting point must be the National Law. If the decision of the Board is to be analysed in terms of 'jurisdictional fact', the fact under s 178 is that the Board had a reasonable belief that the way Mr da Horta practises, or his professional conduct, is or may be unsatisfactory. The existence of that reasonable belief is the fact that enlivens the power to take relevant action under s 178(2).
54 The standard of 'reasonable belief' has been considered on other occasions in relation to the National Law. In Bernadt v Medical Board of Australia [2013] WASCA 259 the court was considering s 156(1)(a), under which:
A National Board may take immediate action in relation to a registered health practitioner ... registered by the Board if
(a) the National Board reasonably believes that
(i) because of the registered health practitioner's conduct, performance or health, the practitioner poses a serious risk to persons; and
(ii) it is necessary to take immediate action to protect public health or safety;
55 McLure P said of this provision, at [64] [67]:
The existence of a reasonable belief is a jurisdictional 'fact' that enlivens the power in s 156(1)(a) to take immediate action: Eshetu [130]; Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 [57]; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 [183].
It is necessary to identify with precision what it is that must be the subject of the reasonable belief. There are three components in subpars (i) and (ii) of s 156(1)(a), one factual and two evaluative. They are:
(1) because of (that is, by reason of) the practitioner's conduct, performance or health
(2) the practitioner poses a serious risk to persons; and
(ii) it is necessary to take immediate action to protect public health or safety.
The 'reasonable belief' requirement applies, in my view, to the three components, including the factual substratum ... on which the evaluative assessments ... are to be made. That being so, the fact or facts directly in issue concerning a practitioner's conduct, performance or health do not have to be proven on the balance of probabilities: George v Rockett [1990] HCA 26; (1990) 170 CLR 104. However, there must be proven objective circumstances sufficient to justify the belief.
The High Court in Rockett discussed the meaning of the statutory expression 'reasonable grounds for believing' in a provision relating to the issue of a search warrant. The provision relevantly provided 'If it appears to a justice, on complaint made on oath, that there are reasonable grounds for suspecting that there is in any house ... or place ... Anything ... as to which there are reasonable grounds for believing that it will of itself or by or on scientific examination, afford evidence as to the commission of any offence'. In that case the decision-maker did not have to entertain the relevant suspicion or belief. The question was whether the complaint and statutory declaration which supported it contained sufficient facts to found the reasonable suspicion and the reasonable belief. In that context, the majority said:
'Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.'
56 In Solomon v Australian Health Practitioners Regulation Agency [2015] WASC 203, Mitchell J said of the same expression in s 182(1)(a):
The conditions for the valid exercise of the Board's power ... turn on the existence of a relevant reasonable belief, which does not require the Board to establish on the balance of probabilities that the belief is correct or true [203].
57 In considering this matter by reference to s 178, the words 'is, or may be' must also be given their natural meaning. The Board is not required to hold a reasonable belief that Mr da Horta's practice, or his conduct, is unsatisfactory - it is sufficient if the Board reasonably believes it may be. In Coppa v Medical Board of Australia [2014] NTSC 48, Barr J considered s 169, under which a National Board may require a practitioner to undergo assessment if the Board reasonably believes that the practitioner 'has, or may have' an impairment. His Honour said:
The words 'or may have' clearly indicate that reasonable belief as to the possibility of an impairment is sufficient' [51].
58 Fourth, it is necessary to identify what is the relevant decision of the Board. Section 178 requires a reasonable belief that, because of the notification or for any other reason, Mr da Horta's practise or his professional conduct is, or may be, unsatisfactory. There must be a factual basis for the Board's belief about the way Mr da Horta practices or his conduct. But the court is not reviewing a factual finding, on the balance of probabilities or any other standard of proof. The court is concerned only with whether the Board could rationally have held the belief specified in s 178(1) on the material available to it.
59 Finally, the Board was obliged by s 179(2) to consider Mr da Horta's submission, but not obliged to accept it.
60 The Board had Mr da Horta's notes of the initial consultation and his report to the referring practitioner, Mr Ireland. Those notes are confined to the history, findings on examination, and record that an ultra-sound was requested. They do not contain any reference to discussion of treatment options, their risks and likely outcomes at the initial consultation with the complainant. The material before the Board could not prove that Mr da Horta did not adequately discuss those matters; but I am not satisfied that no reasonable decision maker could believe it possible that he did not. Within the scheme of the Act, a reasonable belief as to that possibility is all that is required for the Board to decide to caution under s 178. And it was clearly open to the Board to judge the sufficiency of the information contained in the clinical records Mr da Horta produced.
61 The Court is not ultimately concerned with the letter of the Board, but with the decision to caution. The complaint that no reasonable decision maker could have decided to take relevant action under s 178 has not been made out, and I would not uphold ground 1.
62 The alternative ground of breach of natural justice has fallen away. In his affidavit in response to the application, Mr Hemsley deposed that the Board had access to Mr da Horta's clinical notes and to the Code of Conduct. The Board submits that there is no evidence that it relied on any material other than Mr da Horta's submission to it and the clinical records he provided in response to the notification, and no basis for inferring that it did so. I accept that submission.
63 It is unnecessary to consider the issue of remedy. Because it was argued, I will briefly deal with it.
64 First, I accept the Board's contention that the decision to caution is not amenable to certiorari because it does not affect legal rights, duties, or obligations. The High Court said in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 [25]:
The function of an order in the nature of certiorari is to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power. Thus, an order in the nature of certiorari is available only in respect of an exercise or purported exercise of power which has, at the date of order, an 'apparent legal effect'. An order in the nature of certiorari is not available in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is moot or spent. An order in the nature of certiorari in those circumstances would be not simply inutile; it would be unavailable.
See also Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 581 (Mason CJ, Dawson, Toohey & Gaudron JJ), 595 (Brennan J); Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149, 158 159 (Brennan CJ, Gaudron & Gummow JJ), 178 (Dawson & Toohey JJ).
65 The alternative remedy of a declaration is not so confined. In Ainsworth, in their joint reasons, Mason CJ, Dawson, Toohey and Gaudron JJ said:
It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which '(i)t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise.' However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have 'a real interest' and relief will not be granted if the question 'is purely hypothetical', if relief is 'claimed in relation to circumstances that (have) not occurred and might never happen' or if 'the Court's declaration will produce no foreseeable consequences for the parties' (581 582). (references to authority omitted)
See also Plaintiff M61/2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 [101] [103].
66 The court would have power to grant a declaration were it satisfied that the decision of the Board was outside its statutory power. The power to grant a declaration is discretionary. The discretion would be exercised according to the circumstances of the particular matter.
67 I believe these matters are important. First, the declaration would be directed to determining a real controversy - in no sense can it be said that the questions raised in the application are hypothetical. Second, in cautioning Mr da Horta, the Board was exercising a statutory power under the National Law. The caution is one of the relevant actions in s 178, and a 'health, conduct or performance action' as defined in s 5. In exercising a statutory power, the Board must act in accordance with the law. Third, although the practical effect of the decision to caution may be limited, particularly where Mr da Horta is selfemployed, the Board may only decide if it reasonably believes that the way in which Mr da Horta practices his profession, or his professional conduct, is or may be unsatisfactory. That is a significant decision. Had I been satisfied that the Board acted without power, a declaration would have been made.
(2011) 244 CLR 144
(1990) 170 CLR 104
(2013) 252 CLR 480
(1992) 175 CLR 564
(2010) 243 CLR 319
(2013) 249 CLR 332
(2015) 258 CLR 173
(2002) 211 CLR 540
(1996) 185 CLR 149