Dr B v Health Secretary on behalf of a Local Health District

Background

1. The appellant is a specialist uro-gynaecologist who was engaged as a staff specialist by the respondent on a 0.1 FTE fractional appointment basis. Following dismissal, the appellant was placed on the Service Check Register for New South Wales Health.
2. The Commissioner determined: 1. on 28 May 2014, the appellant consulted with a patient and obtained consent from the patient for an "anterior repair with mesh, cystoscopy pudendal nerve block, bilateral sacrospinous colpopexy". Although the appellant asserted that the possibility of colpocleisis was discussed with the patient as a reasonable option that would avoid mesh use, and the appellant was confident that, had the patient been asked to consent to a colpocleisis, consent would readily have been granted, there was no written consent for a colpocleisis procedure obtained at this consultation; 2. on 1 December 2014, the appellant had a further consultation with the patient and obtained written consent for a procedure using a lighter mesh. There was no written consent for a colpocleisis procedure obtained at this consultation; 3. on 5 December 2014, the appellant undertook a procedure on the patient who was at the time, 68 years of age. During this procedure, the appellant inadvertently caused an injury to the patient's bladder. There was no conclusive evidence before the Commission, including the evidence of the appellant, that the patient was in a life-threatening situation as a result of this injury; 4. the appellant sought advice from an urology registrar and an urologist as to what steps the appellant should take to deal with the injury. Both doctors advised the appellant that the appellant should not proceed any further and should conclude the procedure. However, the appellant continued the procedure and then performed "a procedure that achieved the same result as if [the appellant] had performed a "classic colpocleisis" - that is, the patient was incapable of penetrative sexual intercourse, and "the ramifications for the patient were no different to that where a colpocleisis was performed"; 5. neither the consent form obtained on 28 May 2018 nor the consent form obtained on 1 December 2018 records the possibility of a colpocleisis or a severe narrowing of the vagina. Nor do those forms document a procedure that would render the patient incapable of penetrative sexual intercourse; 6. surgeons have a responsibility to accurately record pending procedures on paper and clearly set out the nature of the procedure contemplated; 7. the Medical Council of New South Wales (the Medical Council) determined that the appellant had not breached the Health Practitioner Regulation National Law (NSW) Act 2009 and accordingly, no further action would be taken by it; 8. the appellant was aware of the respondent's requirements to obtain specific consent contained in the respondent's Policy Directive PD2005-406 and understood that the procedure had to be exactly as was consented but the appellant did not comply with these mandatory requirements; 9. policy directives are, in effect, a lawful instruction from the respondent to the employee and mandatory compliance with policies has a high profile within the respondent. Establishing and enforcing mandatory compliance is important as a breach of the policies can lead to serious consequences for patient safety and reputational damage for clinicians and the respondent; 10. the Appellant's post-operative reports support the proposition that the respondent was entitled to determine that the appellant provided insufficient detail with response to medical/operating theatre notes concerning the actual surgery performed on the patient; 11. the appellant was "on notice" about the appellant's performance, as the appellant had been placed on a number of performance improvement plans, which in effect comprised a number of "warnings" that absent improvement in the level of performance required, further disciplinary action, including dismissal, may follow; 12. the respondent's credibility and reputation in the public domain requires all employees to comply with the various lawful directions set out from time to time in policy directives, codes of conduct and the like and the employer is entitled to expect compliance with its express workplace policies and procedures, particularly where an employee has been the subject of previous warnings; 13. when viewing the appellant's conduct on 5 December 2014, the failure to obtain specific consent, and other performance and conduct issues, the dismissal was not harsh in all of the circumstances and was not a disproportionate response to the gravity of the conduct relied upon; 14. there were no substantive issues of procedural fairness identified in the proceedings and there was no denial of procedural fairness to the appellant; and 15. taking into account the appellant's length of service, service record, and the gravity of the misconduct, the Commissioner was unable to find that the dismissal was disproportionate to the gravity of the misconduct, nor harsh, unjust or unreasonable.

Principles on leave to appeal

1. An appeal does not lie as of right against a first-instance decision of the Commission under the Act. Leave has to be sought and granted before any appeal is heard (s 188(1) of the Act) and the Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted (s 188(2) of the Act). Accordingly, we turn first to the question of leave to appeal.
2. The principles in relation to the grant of leave to appeal a decision of the Commission were summarised in Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16. In that matter the Full Bench stated at [10] and [11]: It is well settled that an appeal under the IR Act is an appeal in the strict sense: see s 191 of the IR Act and King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407. In such an appeal the appellate tribunal will only intervene to correct error: Aboud v State of New South Wales (Department of School Education) [1999] NSWIRComm 449; (1999) 92 IR 32. In the case of discretionary decisions it is not enough that the appellate tribunal would have come to a different view. It must be shown that the primary judge had failed to properly exercise the discretion committed to him: Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 and House v The King [1936] HCA 40; (1936) 55 CLR 499. It is important to bear these principles in mind in approaching the question of leave to appeal. The principles guiding the determination of leave were clearly set out in this often cited passage from Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263: [5] The law and practice governing leave to appeal is well settled …: see Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52]-[55] and Knowles at 381 - 382) and, subject to the requirements of s188(2) of the Act, will not, generally, be granted unless the appellant demonstrates that the appeal "raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application" (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5].
3. In Industrial Relations Secretary v Wattie [2017] NSWIRComm 1007 the Full Bench stated at [12] and [13]: Further, we reiterate the observations of the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 at 392, referring to the then-recently enacted provisions of the Act: "The provisions of the Act as to appeals give primacy to first instance decision making in a manner not earlier found in industrial legislation in this State. We note that the Full Bench in Antonakopoulos v State Bank of NSW (1999) 91 IR 385 also held, immediately before the statement set out above, that an appeal bench should not substitute its own views as to a decision that was reasonably open at first instance. We endorse and apply that approach. Lastly, we add, as the Full Bench said in Fire Brigade Employees' Union of NSW (o/b Challinor) v Fire and Rescue NSW [2016] NSWIRComm 1050, that it will rarely be appropriate to grant leave to appeal unless an appellant can mount at least an arguable case pointing to appellable error. ... There will rarely be utility in granting leave to appeal where that degree of error cannot at least arguably be agitated on appeal.
4. The principles outlined in those cases have since been approved most recently in Jessica Xiao v Industrial Relations Secretary (Department of Justice) [2018] NSWIRComm 1054.
5. It is also relevant that an appeal which lacks wider application than the interests of the parties will not normally be granted leave (Stegbar v Transport Workers' Union [2008] NSWIRComm 104; (2008) 173 IR 350 at 359).

Leave to appeal

1. The appellant sought leave to appeal on the following grounds: 1. the decision of the Commissioner was manifestly wrong for the reasons set out in the grounds of appeal; 2. the appeal raises substantial issues of principle and/or law; 3. the appeal has wide implications for the jurisprudence of this Commission, insofar as the Commissioner failed to apply the accepted jurisprudence of the Commission; 4. the appeal has potentially wide practical implications for doctors (and other professionals) exercising their professional judgement in the workplace; and 5. the appeal raises substantial issues regarding the comity as between the Medical Council, and its equivalent bodies, and the Commission.
2. The respondent resisted leave and submitted: 1. the appellant appears to accept that the Medical Council's decision is but one of many discretionary matters for the Commission to consider. As such, the appeal only challenges the evidentiary weight given to the Medical Council's decision which: 1. is a matter particular only to the appellant and respondent and not a matter of wider importance; 2. is merely re-agitating the merits of the original decision; and 3. primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence; 1. the Commissioner gave weight to the Medical Council's decision. There is no basis upon which it could be said that if the Commissioner gave more weight to the Medical Council decision that the outcome of the proceedings would have been different; 2. the appellant's references to "fear" for medical practitioners across the state and to the "proper administration of justice" by way of comity are misguided. The Commissioner did not ignore, nor did he simply casually set aside the decision of the Medical Council; and 3. the Commissioner considered a different question to the Medical Council.

Consideration

1. We consider the question of leave to appeal in light of the principles on leave to appeal outlined above.
2. Before a brief consideration of each of the grounds for leave identified by the appellant we will make some overarching comments.
3. The essence of the appellant's case may be distilled to four propositions: 1. the Medical Council is the statutory body established to adjudicate on medical standards; 2. the Medical Council saw no reason to take any further action; 3. the respondent, and the Commission, should defer to the decision of the Medical Council; and 4. the issue before the Medical Council and that before the respondent, and the Commission, was identical.
4. The first proposition may be accepted in so far as it relates to the rights of practitioners to carry on practice either with or without restrictions.
5. Similarly, the third proposition may be accepted in so far as it relates to the right to practice medicine. If a practitioner's license to practice were withdrawn or made subject to some restriction, an LHD and the Commission should, and would, defer to such a decision. Similarly, an LHD, and the Commission would recognise and give weight to a decision of the Medical Council dismissing a complaint against a practitioner. The Medical Council, however, does not consider whether to compel a patient, hospital or an LHD to accept the services of a particular practitioner. The Commission, on the other hand, is required to consider whether it will exercise its powers to require an LHD to use the services of a particular medical practitioner. The Commission does not determine whether a person should be entitled to practice medicine.
6. These differences in function are an important consideration in assessing the relevance and weight to be given to the decision of the Medical Council.
7. In recognising the decision of the Medical Council, and deciding what weight to give the decision in considering the exercise of its powers, the Commission would consider: 1. the processes of the Council; 2. the nature of the issues before it; 3. the information before it; and 4. the reasons for its decision.
8. In this case the Medical Council: 1. conducted an inquisitorial process; 2. considered whether the patient gave, in accordance with the National Law, consent to the procedure undertaken; 3. received Information from the respondent and the doctor and interviewed the doctor; and 4. decided to take no further action because: 1. the National Law does not require consent to be in writing; 2. the information provided by the patient, by way of letter, supported a finding of consent in that: 1. the parameters of the procedure were discussed with the patient preoperatively; 2. she was willing to accept the judgement of the doctor as to what the doctor thought best; and 3. she was happy with the outcome.
9. As is apparent from the Commissioner's findings listed above, each of these matters was taken into account by him. The Commissioner also had regard to: 1. the respondent's right to give lawful and reasonable directions; 2. the Policy Directive requiring consent for surgical procedures to be specific and in writing; and 3. the absence of any exceptional circumstances, as permitted by the Policy Directive, justifying departure from the policy.
10. It seems to us in having regard to these matters the Commissioner rightly distinguished between the functions of the Medical Council and those of the Commission. We turn now to comment briefly on each of the grounds said to support the grant of leave.
11. It is convenient to deal firstly with Grounds 2 to 5 and then return to consider whether the Commissioner's decision was manifestly wrong (Ground 1). For the purpose of determining whether leave should be granted the Full Bench has had regard to each of the asserted errors set out in the grounds of appeal.

Ground 2 - The appeal raises substantial issues of principle and/or law and issues going to the proper administration of justice

1. The appellant's written submissions assert the primary issue of public interest and the issue going to the "proper administration of justice" is that the Commissioner ignored and/or effectively discounted the decision of the Medical Council without satisfactory explanation resulting in an egregious error on the part of the Commissioner. In the oral submissions of counsel, the asserted conflict between the Medical Council's decision and the Commission's decision were put as a principle of law. We deal with the Commissioner's consideration of the Medical Council's decision under Ground 5 below.
2. The appellant's counsel submitted that the unfairness of the decision to terminate the appellant's employment was an important matter of principle. We do not accept that the decision to dismiss was unfair, manifestly wrong, and/or disproportionate in all of the circumstances as set out under Ground 1 below.

Ground 3 - The appeal has wide implications for the jurisprudence of this Commission

1. The appellant asserts that the appeal has wide implications for the jurisprudence of the Commission because it suggests that the Commissioner, in the exercise of his discretion, may simply ignore a critical decision, on an identical issue, by a body such as the Medical Council of New South Wales. We do not agree.
2. As our overarching comments at [17] to [24] and our discussion of Ground 5 make clear, we do not agree that the Commissioner "simply ignored" the Medical Council decision nor that the Commission considered "an identical issue". The Commissioner considered the differences in the issues before the Commission and the Council and accorded the decision due weight in determining the issue before him.
3. The appeal seeks to challenge findings of fact, and the exercise of discretion by the Commissioner, in the specific circumstances of the appellant. The Commissioner's findings of fact were reasonably open to him based on the evidence before him; he applied the appropriate tests to the matters before him with regard to the law in accordance with the relevant authorities; and he made findings comfortably within the bounds of his statutory discretion.

Ground 4 - The appeal has potentially wide practical implications for doctors (and other professionals) exercising their professional judgement in the workplace

1. The appellant asserts that the Decision has arguably widespread practical application because medical practitioners in NSW who are employed in the public system may "realistically fear that the approval of their professional conduct by the Medical Council (or equivalent) may be simply and casually set aside by the Industrial Commission in consideration of unfair dismissal proceedings". We do not agree.
2. The Commissioner found that the appellant had not obtained specific consent from the patient for a procedure that resulted in vaginal narrowing. The Commissioner determined that the appellant, whilst knowing about the respondent's policy directive which required specific consent, failed to follow the policy.
3. The challenged decision makes it clear that "consent is not required in life-threatening situations where serious complications arise during surgery". The Commissioner determined, and it was conceded by the appellant, that the patient's life was not in danger at the time the decision to undertake the vaginal narrowing procedure was made.
4. Further, the Commissioner noted that the Commission was not qualified to make any finding as to whether the appellant's decision to continue with the surgery after receiving advice from other specialists not to continue, was necessary.
5. The Commissioner did not casually set aside the Medical Council decision but properly engaged in consideration of the evidence presented to him as set out below in respect of Ground 5. Accordingly, the Decision does not establish a basis for fears of the type asserted by the appellant.

Ground 5 - The appeal raises substantial issues regarding the comity as between the Medical Council and its equivalent bodies, and the Commission.

1. The appellant made much of the Commissioner's asserted "egregious error" in not considering and/or not giving appropriate weight to the decisions of the Medical Council and the Health Care Complaints Commission (HCCC), which the appellant asserts raises important matters of public interest by flying in the face of the legislative scheme established to protect and preserve standards of professional conduct of medical practitioners in NSW.
2. The appellant submitted that the proper administration of justice calls for comity between a specialist regulatory agency such as the Medical Council and a generalist tribunal such as the Commission in circumstances where the very issue at stake in both proceedings was the professional conduct of the practitioner concerned. The appellant further submitted that the: "importance of the appeal is that it throws into stark contrast the conduct, and the judgment and assessment of the Medical Council of NSW, … the body specially set up by statute to deal with the issues that go to professional practice and other specialist medical practitioners on the one hand and the Commissioner's assessment of the facts on the other".
3. At the conclusion of the hearing of the appeal, counsel for the appellant conceded that the proposition of comity, in the technical sense, was not being pressed and that the appellant's contention was that it was essentially a matter of weight.
4. It is evident from the Commissioner's summaries of the evidence that the Commissioner gave weight to the Medical Council decision. It is also clear that the Commissioner formed a view that the Medical Council made a decision about whether it was appropriate for it to take any action pursuant to s 150 of the Health Practitioner Regulation Law (NSW) Act 2009 to protect the health or safety of any person or persons or if satisfied the action is otherwise in the public interest, however, as we have observed this was not the question the Commissioner was required by the Act to determine.
5. The Commissioner had regard to the findings of the HCCC set out in its letter of 21 May 2015. He extracted a lengthy quote from the letter including the HCCC's acknowledgement: "that the absence of consent in writing could potentially give rise to the implication that the procedure has not been discussed or that consent was not obtained" and the finding that "as consent is not required to be written and the patient has expressed [post-operatively] that she consented, the procedure was discussed with her and her satisfaction with the procedure overall, there appear to be no further outstanding concerns regarding the issue of consent ".
6. The Commissioner, in exercising his discretion, weighed the decision of the Medical Council, and the findings contained in the letter from the HCCC together with the evidence of Dr M, Dr G, Dr F, Dr J, Dr T, and Dr H in the adversarial proceedings before the Commission, to determine whether the appellant had acted in breach of the respondent's policy on specific consent and whether the decision to terminate the appellant's employment was harsh, unjust or unreasonable.
7. The Commissioner determined, consistent with Dr A v Health District (No 2) [2014] NSWIRComm 50, that the respondent is not required to implement all Medical Council decisions or adopt the findings of the Medical Council.
8. The Commissioner found that there was no requirement for the Commission, when determining whether the appellant had contravened the respondent's policy and the disciplinary actions which flow from that, to adopt the findings of the Medical Council as to whether any action is appropriate, in connection with the appellant's right to practise, for the protection of the health and safety of any persons or for reasons otherwise in the public interest. We agree that the Medical Council's decision is but one of many discretionary matters for the Commission to consider.
9. The Commissioner determined that the appellant did not comply with the relevant mandatory documentation requirements with respect to consent in accordance with PD 2005_406 consent and patient information and intraoperative record keeping required by PD 2012_069 records and documentation management. Such policies and directives represent, as the Commissioner found, a lawful order with which an employee must comply. Clearly in his mind, and ours, that is a different issue from that which the Medical Council was required to decide.
10. The determination of evidentiary weight is a matter for the Commissioner's discretion. Unless such weight offends the principles in House v King there is no basis for an appeal bench to intervene.
11. The appellant's grounds of appeal assert that the Commissioner was unable convincingly to explain why his reasoning was to be preferred to the reasoning and conclusion of the experienced body established by NSW statute precisely for the purpose of (inter alia) pronouncing upon professional standards and conduct of medical practitioners. We do not agree.
12. The Commissioner analysed the evidence of the relevant doctors to the Commission in the Decision. It is clear from his analysis that the Commissioner considered that this evidence, given in an adversarial context, and on the questions of whether: 1. there was a serious breach of the respondent's policy; and 2. the termination was harsh, unjust or unreasonable, was to be preferred to simply accepting the decision of the Medical Council on the matter before it.
13. We note the comments of Emmett JA in Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 at paragraph [227] where his Honour states: While a decision-maker such as the Commissioner is required to state reasons for the decision being made, such a decision-maker is not required to mention every fact or argument relied on by a losing party. It is also not necessary for a decision-maker to expose every step in the chain of reasoning that leads to the conclusion. The only question is whether the Commissioner entirely overlooked a mandatory consideration.
14. In that context, the Commissioner has sufficiently provided the reasons for his decision.

Ground 1 - The decision of the Commissioner was manifestly wrong / manifestly unjust

1. In addition to the specific grounds pleaded to support the application for leave to appeal considered above, the appellant relies on the ground that the decision was manifestly wrong or manifestly unjust.
2. We have taken into account the Commissioner's consideration of the impact of the decision upon the appellant and whether this was, and will continue to be, harsh. We have specifically considered whether the Commissioner properly took into account the effect on the appellant of the appellant's inclusion on the respondent's Service Check Register, i.e. that, for all practical purposes, the appellant will no longer be able to practise medicine in the public system and the decision has and will, severely restrict the appellant's ability to practise in the private system. We have determined that the Commissioner properly considered this impact and he determined that on the basis of his findings of fact that this impact was not harsh or disproportionate when weighed against the misconduct he found. This was a matter that was within the Commissioner's discretion.
3. We have considered the submissions that the Commissioner's decision was in error as being contrary to, and completely outside, the line of accepted authority applied by this Commission (and the Fair Work Commission). We do not agree.
4. After a thorough consideration of the evidence put to him, the Commissioner determined that there had been a serious breach of the employer's policies and that while the patient in this instance was satisfied with the outcome of the procedure, had the outcome been different then potentially there would be significant reputational and legal consequences for the appellant and the employer. In determining whether the respondent's decision was harsh, unjust or unreasonable, the Commissioner applied the relevant authorities in relation to a serious breach of a lawful and reasonable direction. The challenged decision contained reasoning and analysis and an appreciation of the facts and the issues of the case consistent with sound industrial judgment and industrial jurisprudence.
5. Finally, the appellant asserts a number of procedural defects and protests that the Commissioner was manifestly wrong to find that there was no lack of procedural fairness. The appellant's counsel submitted that the defects in procedural fairness, particularly with respect to the suspension of the appellant by the respondent, had a serious enough impact on the decision to dismiss to render the decision to terminate "unfair".
6. In the Decision, the Commissioner determined that there were no substantive issues of procedural fairness identified in the proceedings and that there was no denial of procedural fairness to the appellant. The Commissioner noted the authority for the proposition that, even if some procedural deficiency was identified, the seriousness of the misconduct relied may render inappropriate any finding that a dismissal was harsh, unjust, or unreasonable.
7. We do not agree, as counsel for the appellant submitted, that the Commissioner took the narrowest view of procedural fairness, nor do we agree that the Commissioner ignored the procedural matters. We note the submission of counsel for the appellant that it is not sufficient for the Full Bench to find that, while the decision may not be one we would make, it is nevertheless one that was open to the Commissioner to make. However, as the authorities cited above make clear, we may only substitute our own judgment if the Commissioner fell into an error of law or made a finding of fact that is demonstrably wrong. There has been no error of law made out and we do not consider that the Commissioner was demonstrably wrong.
8. The Commissioner took into account the investigation and disciplinary processes, the appellant's participation, and representation, in the processes, and formed a view in accordance with the relevant authorities that the appellant's breach was a serious breach, that there was no denial of procedural fairness, and that due to the seriousness of the misconduct relied upon, the respondent's actions did not render the dismissal harsh, unjust or unreasonable. It was open to the Commissioner, in exercising his discretion in relation to the facts before him, to make such a finding.

Conclusions

1. An appeal cannot succeed in the absence of appellable error and it will rarely be appropriate to grant leave to appeal unless an arguable case of appellable error is demonstrated.
2. The grounds of appeal do not disclose any appellable error nor do they raise any substantial issues of principle or law that have wider implications for the jurisprudence of the Commission
3. In order to determine the question of leave we have given consideration to each of the appellant's grounds of appeal. The appeal seeks to challenge findings of fact, the interpretation of legal authorities and the exercise of discretion by the Commissioner. We consider the Commissioner's findings of fact were reasonably open to him based on the evidence given in an adversarial setting before him and that the determination of the weight given to the Medical Council decision was a matter within in his discretion. We have formed the view that the appeal does not raise substantial issues of principle or law.
4. There is no proper basis on which, in the public interest, leave should be granted.
5. For these reasons we refuse to grant leave to appeal.

Orders

1. The Full Bench makes the following order: 1. Pursuant to s 164A of the Act the pseudonyms assigned by Commissioner Stanton to the parties and witnesses who appeared in the proceedings in Dr B v Local Health District [2018] NSWIRComm 1037 are continued in this appeal, save for the respondent as identified in Order 2. 2. Direct that the named respondent in the proceedings be amended to the Health Secretary. 3. Leave to appeal is refused.

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: 09 October 2018