Dr Crickitt v Medical Council of New South Wales

The Initial Evidentiary Material

1. Our reading of the reasons for decision published by the delegates indicates that they had before them the same material and information which was initially before us when we commenced hearing this matter. This consisted of the findings of the State Coroner and the police charge facts sheet which we understand to have been produced to the Local Court when determining whether bail should be granted to the appellant. In considering the material contained within the police charge facts sheet, we should make it clear that that material is evidence of the fact of the allegations made by the police against the appellant but is not in any way evidence of the truth of those allegations. For completeness we note also a concession made by Senior Counsel for the appellant that records made available by Medicare indicate that during the period 1988 to 2009 the appellant afforded medical treatment to his then wife.
2. The Coroner found that the appellant's wife "died either on the evening of 31 December 2009 or the early hours of 1 January 2010 at Woodbine but the evidence has not allowed either the cause or the manner of her death to be determined."
3. The police charge facts sheet contains significant detail concerning a number of matters. It is a public document, and rather than attempt to summarise the detail contained in it we reproduce its contents verbatim:

The Course of the Proceedings

1. The appeal first came on for hearing before us on 17 March 2015. On that day, we received the evidentiary material consisting substantially of the police facts charge sheet set out above, the concession by the appellant that he had treated his wife, and the Coroner's findings, and we heard submissions from both parties. The submissions focused attention on the nature of the proceedings before the delegates and the nature of the appeal before us. These became matters of significance which we shall return to in some detail later in these reasons for decision. In essence, it was submitted on behalf of the appellant that it was a serious matter to deprive him of his livelihood, he would strenuously defend the murder charge brought against him, he was entitled to a presumption of innocence and the only material of a factual nature was that contained in the charge sheet allegedly created by a police officer for the purpose of a bail hearing, such officer not necessarily having any direct or first-hand involvement in the police investigation. It was said in the circumstances that the sole basis for the decision of the delegates, namely one of public interest, could not be satisfied merely on the basis of unsubstantiated allegations, and the appeal should be allowed.
2. The respondent submitted that the public interest, in all the circumstances, dictated that the appeal should be rejected. The respondent said that both the delegates and the Tribunal were entitled to rely upon the allegations contained in the police facts charge sheet having regard to the nature of the proceedings created by section 150 of the Act. Furthermore, the public interest dictated that the decision of the delegates should be upheld because of the allegations that the respondent had lied to the police, the appellant had allegedly treated his wife as disclosed in the allegations, and the circumstances in which the second prescription had been issued and dispensed on 31 December 2009. The respondent emphasised that it was in the public interest to suspend the appellant from practising medicine "to protect public confidence in the ethics, honour and trustworthiness of those who practice medicine." All of these matters which were emphasised by the respondent, it was submitted, were relevant to matters of public interest, and even though the appellant might ultimately be acquitted, this did not prevent "the distress and anxiety the patients might feel in the interim, with the flow on affect that they are dissuaded from seeking medical advice in the future."
3. It will be necessary for us to consider the provisions of section 150 of the Act in some detail. For present purposes we point out that the power to suspend is enlivened where the Council is satisfied that it is appropriate to do so on either of two nominated grounds, namely "the protection of the health or safety of any person or persons….." and "otherwise in the public interest." During the course of receiving submissions from the parties, we suggested that there might be three bases for invoking the protection of the health or safety ground, namely the allegations that the appellant had lied to the police, he had afforded medical treatment to his wife as admitted, and the alleged circumstances surrounding the issue of the second prescription. We do not understand either party to have embraced these suggestions during the course of the hearing that day.
4. The proceedings were stood over to allow the parties to research and make further submissions about the matters raised during the course of the hearing, and especially the weight or otherwise that should be attached to the allegations contained within the police facts charge sheet in determining the appeal. Helpful written submissions were received from counsel for the respondent and for the appellant dated 31 March and 7 April 2015 respectively, and the submissions referred to a number of authorities which we have found to be of assistance. We caused a letter dated 10 April 2015 to be forwarded to the parties seeking further submissions concerning the three matters which we had raised with them which might arguably be relevant to a consideration of the protection of the health and safety of the public ground. We asked that the parties consider the following matters: 1. Whether, given the nature of the proceedings before the Tribunal, it is permissible for the Tribunal to consider this matter by reference to whether the suspension is justified for protection of the health or safety of the public in addition to the public interest; 2. Whether the three matters to which the Tribunal referred would either individually or, in the aggregate, constitute a basis for suspension either for the protection of the health or safety of the public, or in the public interest, or both.
5. This letter was the catalyst for a number of written submissions by both parties. In essence, the appellant submitted that the proceedings before the delegates having been confined to a consideration of the public interest ground, and the delegates having relied on the public interest ground only, it would be inappropriate for the Tribunal to stray outside that ground in determining the appeal proceedings. Furthermore, the respondent had "expressly disavowed any reliance on the public safety ground" during the course of submissions on the first day of the hearing, and the appellant's counsel had understood that the Tribunal in some way had indicated that the public protection ground would not be pursued by it. The appellant further submitted that, in any event, the Tribunal has no power to initiate "a new complaint or ground for the suspension" and is confined to the public interest ground as advanced by each of the parties, and even if there were such a power in its discretion the Tribunal should decline to consider it because it would involve unfairness and delay and because each party would, in effect, have to start again.
6. The respondent disagreed with the thrust of the appellant's submissions. It asserted that having regard to the nature of the proceedings before the Tribunal, we were entitled to determine the matter having regard to the public protection ground, although it remained of the opinion that the three matters essentially went to the public interest ground.
7. The competing submissions of the parties have created a substantial division of opinion about the nature and extent of the jurisdiction and powers of the Tribunal in dealing with these appeal proceedings. Furthermore, the appellant indicated that he may now wish to reconsider the manner in which he would conduct the proceedings. Shortly after, the respondent indicated that it wished to adduce additional evidence in the proceedings consisting of records of interview conducted by police officers with the appellant and certain material which it had recently obtained and which had formed part of the evidentiary material tendered before the Coroner. We were also concerned that because the submissions were in written form, and had been exchanged as such the parties had in effect engaged in an exercise of rebuttal, but had not engaged in a detailed consideration of the various assertions made by each of them. In these circumstances, dialogue in the course of oral submissions was a more satisfactory process. At a directions hearing conducted on 18 June 2015, the matter was set down for further hearing on 3 and 4 August 2015 for the purpose of dealing with the respondent's application to reopen its case and to file additional evidence, and for final argument concerning the jurisdiction and power of the Tribunal.

The Interlocutory Applications

1. At the adjourned hearing commencing on 3 August 2015, senior counsel for the appellant made the following submissions: 1. In circumstances where the respondent now wished to adduce additional evidence and to rely on an additional ground based on public safety, it was more appropriate that the matter be dealt with by the Medical Council than this Tribunal. It was the Council that has the responsibility to pursue the matter, and it was more able to consider the suspension of the appellant expeditiously and with "a different dynamic" than the Tribunal. The composition of the Tribunal, consisting in total of four persons in effect rendered the Tribunal more unwieldy than the Council. 2. The delay in dealing with the matter before the Tribunal could be characterised as "drowsy procrastination" by the Council, in circumstances where it could take "all the time in the world" in participating in the proceedings before us by adding the additional ground and by seeking at a late stage to adduce additional evidence. 3. There was no proper basis to allow the additional evidence which the respondent now wished to rely on, and there had been inappropriate delay on the part of the Council in gathering that evidence.
2. To deal with this last submission, it is necessary to describe the evidence that was sought to be produced and the reasons therefor. An affidavit made on 14 May 2015 by a legal officer employed by the Health Professional Councils Authority who has had the day-to-day conduct of these proceedings on behalf of the Council for some months, indicates that in February 2015 a letter was forwarded to the Director of Public Prosecutions seeking a copy of the Brief of Evidence concerning the murder charge laid against the appellant. This request was denied. In addition, information was sought from the Health Care Complaints Commission about whether that organisation held any relevant information concerning this matter. Enquiries were also made of the Coroner's Court seeking its file concerning the inquest into the death of the appellant's wife. By March 2015 the legal officer was aware that the Coroner's Court file had been located but that there might be a delay in copying the approximately 2200 pages. She then sought the index to the Coronial Brief of Evidence which she received on 5 May 2015. The following day she received transcripts of electronically recorded records of interview between police officers and the appellant. In her affidavit, the legal officer said that she thought that the contents of the interview were relevant to our determination and, in particular, the allegation that the appellant had lied to the police concerning his movements on the evening of his wife's death, and sought leave to reopen the evidence to place the material before the Tribunal. A further affidavit by the same legal officer made on 22 June 2015 said that it was not until 15 June that the Coroner's Court had given permission to the HCCC to copy certain documents, and they were received by her on or about 16 June 2015. These documents are extensive, and include a number of statements made by a number of persons to the police, including a statement from the person to whom the second prescription was allegedly issued by the appellant on 31 December 2009 referred to in paragraphs 26 to 34 of the police charge facts sheet. In addition, this further material includes certain medical records touching upon treatment allegedly afforded by the appellant to his late wife together with reports of Dr Michael Diamond, psychiatrist, who had been retained to provide expert opinion concerning this treatment. The affidavit expressed the opinion that the documents were relevant to a number of matters including the nature and frequency of the medical treatment the appellant provided to his wife and the adequacy of that treatment, engagement by the appellant in "social interaction with other patients" and an admission allegedly made by the appellant that he had given police officers wrong information about his movements on the night of his wife's death. 1. Each of the three matters which were now embraced by the respondent as enabling consideration of the suspension of the appellant under the protection of the public ground were intimately and intricately involved with the allegations of murder brought against the appellant. If one set aside the context of the allegation of murder, none of these three matters would either in isolation or in the aggregate justify suspension. Because the charge of murder per se is really at the heart of the proceedings, it is important to have regard to the appellant's fundamental entitlement to a presumption of innocence. Furthermore, the death of the appellant's wife and the fact that he has been charged with her murder has attained a degree of notoriety and many of the patients at the practice where the appellant was engaged are aware of this. In all of the circumstances there can be no suggestion of any need to protect the health and safety of the public, and, indeed, in their reasons for decision the delegates of the Council eschewed any concern about this ground. 2. In all the circumstances, the matter which the Tribunal was now being asked to consider was not the same matter that was before the delegates of the Council, by reason of the additional ground and the proposed new material, and there was no longer any statutory basis for this Tribunal to deal with the matter because, presumably, it was no longer an appeal for the purpose of section 159 of the Act. 3. In dealing with the appeal, the Tribunal should confine itself to a consideration of the public interest alone, and there is no public interest in suspending the registration of the appellant. 4. The Tribunal does not have inquisitorial type powers and is unable to consider any matters outside those formulated by the parties. Even if the Tribunal had such powers, as a matter of fairness, it should determine the proceedings only on the basis of such issues as were raised by the parties. Specifically, there is no reference in section 159 to the Tribunal being entitled of its own volition to raise an issue which had not been considered by the parties. It was said that such a power would need to be clearly included within the Act, because it was an unusual one. A comparison should be made with the power of the Tribunal to, in effect, initiate a complaint referred to in clause 6 of schedule 5D to the Act. This is in the following terms: 6 Additional complaints [NSW] (1) A Committee or the Tribunal may in proceedings before it deal with one or more complaints about a registered health practitioner or student. (2) If, during the proceedings, it appears to the Committee or the Tribunal that, having regard to any matters that have arisen, another complaint could have been made against the practitioner or student concerned- (a) whether instead of or in addition to the complaint which was made; and (b) whether or not by the same complainant; the Committee or the Tribunal may take that other complaint to have been referred to it and may deal with it in the same proceedings. (3) In proceedings in which a Committee or the Tribunal is dealing with more than one complaint about a registered health practitioner or student, the Committee or the Tribunal may have regard to all the evidence before it (whether the evidence arose in relation to a complaint in respect of which the Committee or the Tribunal is making a finding or any other complaint or complaints in the proceedings) when making any of the following findings- (a) finding on a question of fact in relation to the conduct of a registered health practitioner or student; (b) finding that a registered health practitioner is guilty of unsatisfactory professional conduct or professional misconduct. (4) If another complaint is taken to have been referred to a Committee or the Tribunal under subclause (2), the complaint may be dealt with the adjournment (if any) that, in the Committee's or Tribunal's opinion, is just and equitable in the circumstances. 1. In all the circumstances the appeal should be upheld. This would in turn allow the Council to again consider whether it wished to proceed against the respondent under section 150 of the Act.
3. In submissions in reply, the respondent emphasised that these proceedings involve a hearing de novo, and that the Tribunal is entitled to consider the matter afresh, including matters which were not considered by the delegates, were not raised by the parties, and were not even embraced by the parties, provided that procedural fairness was applied at all times. Furthermore, there could be no question of any delineation of the matters considered by the delegates because they in effect conducted a "meeting" with the appellant, and their proceedings were not constituted by any pleadings. Indeed, there is no question of the Council conducting any formal case before the delegates. Accordingly, the circumstances which are capable of allowing an additional complaint to be made as contemplated by clause 6 of Schedule 5D have no application to proceedings brought under section 150 of the Act. Although there was a person present during the proceedings conducted by the delegates who was an employee of the Council, she was there to assist only and did not participate in the proceedings. The respondent denied any suggestion of "drowsy procrastination" on its part.
4. The appellant asked that we decide whether to accept or reject the submissions made on his behalf before determining whether to continue the proceedings and considering whether the respondent should be permitted to reopen and seek to adduce the additional evidence upon which it wished to rely. That is, as we understand it, the appellant sought a determination at that stage as to whether the appeal would be upheld. We indicated that we were not prepared to do so and that we wished to proceed on the basis that the Tribunal would consider the applications for the reopening of the respondent's case and the admission of the fresh evidence and, in any event, would deal with the proceedings afresh by reference to considerations of the protection of the health and safety of the public as well as the public interest in determining the outcome of the appeal proceedings.
5. The respondent had sought to reopen its case and adduce the fresh evidence referred to on the basis that, firstly, such evidence was relevant to the determination of the proceedings, secondly, we had a discretion to permit the evidence to be adduced, and that there was no undue delay on the part of the respondent in obtaining the evidence, and, significantly, the nature of the proceedings were designed to afford protection for the health and safety of persons and in the public interest consistent with the objects of the Act. No prejudice could attach to the appellant if this further evidence was adduced because the Tribunal could give him an adequate opportunity to respond to it so as to afford procedural fairness. In particular, the evidence went to matters of great significance including the appellant's alleged long-standing treatment of his late wife, the fact that that treatment was afforded for a condition of mental illness, and demonstrated a lack of objectivity in continuing to afford treatment in circumstances where there was evidence of a breakdown in the marital relationship. It was submitted that it was important that this Tribunal make its decision based on all evidence which was both relevant and available.
6. After deliberating, we announced that we would allow the respondent to re-open its case and to seek to adduce the fresh evidence already described. After hearing submissions, we determined to admit the evidence, but subject to the respondent not being permitted to rely on certain portions, following discussions between the parties. It is explicit that in making these decisions we rejected the appellant's application to allow the appeal.
7. The respondent said that it also sought to rely on the evidence as touching upon additional matters which had, thus far, not been raised by it or otherwise mentioned within the proceedings. These included an alleged relationship of some kind between the appellant and a former patient, the adequacy of the appellant's clinical records generally, the fact that he had seemingly socialised with his patients, and that he had referred patients to non-medical practitioners. We indicated that in the circumstances which applied to these proceedings that we would not permit the additional evidence to be used other than in connection with the three matters which had been raised by the Tribunal with the parties namely, the circumstances surrounding the issue of the scripts, the circumstances surrounding the treatment by the appellant of his wife including the state of his clinical records relating to this treatment, and the allegation that the appellant had lied to the police.
8. The proceedings have been stood over for further hearing on 28, 29 and 30 September 2015 to allow for sufficient time for the appellant to call or adduce any evidence on his behalf and for final submissions, on the understanding that if all of these dates are not required, the Tribunal will be informed in advance.
9. At the conclusion of the proceedings on 4 August 2015, Senior Counsel for the appellant requested the Tribunal to publish reasons for the decision to decline to uphold the appeal on the interlocutory basis which the appellant contended for, as set out in the narration above. The respondent did not oppose this course and both the appellant and the respondent submitted that this Tribunal was empowered to issue interlocutory decisions as sought by the appellant. We understand from the appellant that our reasons were requested because the appellant wishes to test our decision and the reasons therefore before the New South Wales Court of Appeal. These reasons for the interlocutory decision which we have made are issued in compliance with this request.

Consideration

1. It is first necessary to consider the nature of the section 150 proceedings from which this appeal is brought. The provisions of section 150 have been set out above. We make the following observations about these provisions: 1. There are two requirements to be satisfied when determining whether the section is enlivened, namely the protection of the health or safety of any person or persons, and the public interest. 2. These requirements are expressed to be in the alternative. 3. The manner in which the introductory words of subsection (1) are expressed arguably creates some difficulty in interpretation, or perhaps some ambiguity. This is caused by the use of the word "otherwise" and the context in which it appears. On one view, it is possible to argue that the health or safety of a person or persons is "otherwise in the public interest", in the sense that health or safety are matters within the public interest. That is, public health and safety are within public interest, but in a different manner, or in other respects. The other view is that health or safety of persons is in the public interest in circumstances which are apart from or in a different or contrasting way from the public interest so that one does not include the other. The difference, in general terms, is between health and safety being subsumed generally within public interest, or health and safety being exclusive of public interest. If the former is correct, then arguably, it would not matter if either the delegates or this Tribunal determines the matter on either basis. If the latter is correct, then a decision based on public interest alone may not have been validly made if, in reality, the findings should more properly had been directed to the protection of the health or safety of any person or persons. It does not appear that this matter has arisen for consideration in any other reported proceedings. Apart from a brief reference to a dictionary definition found on counsel's mobile phone, in answer to a question from the Tribunal. The parties have not made submissions about the appropriate approach to interpretation of the subsection. 4. In any event, if either of the health or safety or public interest ground is made out, then it is mandatory that the Council either suspend or impose practice conditions, subject to the Council being satisfied that it is appropriate to do so for the stated reasons. 5. By subsection (4), action may be taken by the Council under section 150 whether or not a complaint has been made or referred to the Council about the medical practitioner. Accordingly, if information comes to the attention of the Council in whatever manner, the provisions of section 150 are enlivened. Of course, having regard to the nature and extent of the powers under section 150 it is a trite observation that the Council must observe the strictures imposed by section 150 (1), and must do so in a responsible and appropriate manner. It would be a rare situation if the Council determined to take action to suspend or otherwise impose practice conditions without having first notified the practitioner and given him or her some opportunity to explain his or her circumstances. Of course, one might envisage urgent situations arising where there might be no time or opportunity to notify the practitioner. The urgency and apparent gravity of the situation may dictate the nature and extent of the information relied upon in dealing with a matter.
2. There is very little consideration within the provisions of the Act as to the manner in which the Council or its delegates are to conduct themselves in determining whether the necessary preconditions to the use of the available powers under section 150 are satisfied. For present purposes, it is sufficient that we observe that the principles of natural justice, including procedural fairness, should apply to the extent reasonably necessary.
3. The predecessor to section 150, section 66 of the former Medical Practice Act, 1992 was described by Murrell DCJ as being "a temporary or emergency measure, designed to protect public health and safety pending full investigation of possible risks to health or safety." Her Honour described the procedure as being "in the nature of an ex parte interlocutory order," and taken "on the basis of limited information." (see Woolcock v Medical Board [2009] NSWMT 3 at [18]). We respectfully agree with Her Honour's observations. We should add for completion that there are other authorities which discuss the nature of the powers created by the predecessor to section 150, and other legislation to similar effect. We instance decisions in the Supreme Court of New South Wales in Lindsay v NSW Medical Board [2008] NSW SC 40 per Hall J, and Berger v Council of the Law Society of NSW [2013] 1080 per Beech-Jones J. It is not necessary for present purposes that we discussed these authorities in any detail at this stage of the proceedings. They are, however, arguably significant when discussing the extent to which we should properly have regard to the evidentiary material admitted in these proceedings in the course of a final determination of the appeal.
4. For completeness we note that the Council has the powers to end any suspension and review any suspension if application is made under section 150A or of its own motion under section 150C. Our attention was not directed to these provisions in the course of submissions, but arguably, they are provisions which might have been relied upon by the appellant in submitting that the Tribunal should have upheld the appeal. These provisions might be seen to support a submission that the proceedings were more appropriately dealt with by the Council, given the complexities which the appellant maintained were introduced by the respondent's application to reopen its case.
5. It is also necessary to make some observations concerning the nature of the appeal with which we are dealing under section 159 of the Act. Again, the provisions of this section have been set out earlier in these reasons for decision. The important part of the provision for our current purposes is subsection (3). This describes the manner in which the appeal is to be dealt with and uses the words "reconsideration of the matter". It is necessary to identify with some precision the "matter" that needs to be reconsidered. Later in the subsection there is a reference to evidence in addition to or in substitution for that which was before the Council "when it considered the matter….." The matter must, in our opinion, be that which was being considered by the Council. For the purposes of these appeal proceedings, we regard the "matter" as being the circumstances which applied to the practice of medicine by the appellant in the context of the factual background against which the charge was brought against him that he had murdered his wife. Our conclusion, based on our understanding of the provisions of the subsection should be compared with the submission made on behalf of the appellant. That submission was that the "matter" was the actual decision made by the delegates in the name of the Council to suspend the appellant, and whether that decision was right or wrong. In our opinion, the decision is the manifestation of the process by which the delegates determined the outcome of their deliberations. It was the decision to suspend which prompted the exercise of the right of appeal given by section 159. The opening words of subsection (1) make this clear. Accordingly, we reject this submission. We take comfort that our conclusion, based on our understanding of the plain words used in the provision accords with that of Boland ADCJ in Bova v Pharmacy Council of NSW [2014] NSWCATOD 40.
6. Both parties submitted that the use of the word "reconsideration" in section 159(3) rendered the hearing before us as a hearing de novo. We understand that this accords with the approach to construction of this provision adopted by this Tribunal and the parties who habitually appear before it. Accordingly, in determining these proceedings we are, in effect, hearing the matter afresh, and our decision will be based upon such evidence as is adduced during the course of the proceedings. As will be seen, we regarded this as a matter of significance in determining to reject the appellant's submissions that the appeal proceedings should have been upheld prior to allowing the respondent to reopen its case and prior to admitting any fresh evidence.
7. Before considering the submissions of the appellant in any detail, we first set out our understanding of the process in which the Tribunal is involved and the relevant features which should, and did, determine our response to the appellant's application. Our understanding is that the appellant instituted an appeal to the Tribunal against the decision of the delegates of the Council to suspend his registration as a medical practitioner. In the appeal proceedings, he seeks an order that his suspension be lifted and that he be permitted to continue to practise medicine. The matter which is the subject of the appeal proceedings is the circumstances surrounding and arising in connection with the fact that he has been charged by the police with the murder of his wife and whether the circumstances justify suspension under section 150. This constitutes the description of the proceedings before the Tribunal.
8. Being seized of the appeal as we have described it, our statutory duty is to deal with it. Our powers on appeal are those described in section 159C, namely we may terminate, vary or confirm a period of suspension. But, of course, before we may exercise any of those powers we must discharge our functions as created under the Act and the Civil and Administrative Tribunal Act, 2013. It is not necessary that we describe our functions in any particular detail for the purpose of this discussion. It is sufficient to point out that the Tribunal, created by statute, is obliged to discharge those functions which are entrusted to it in accordance with the statute and in a lawful manner consistent with the common law which applies to the functions of Tribunals of this kind. We are obliged to conduct proceedings, receive evidence and submissions, and make a decision. We are not permitted to deal with the proceedings in a summary fashion without receiving such evidence and submissions as are appropriate.
9. The appellant asked that we uphold the appeal before considering whether we should grant the respondent's application to reopen the proceedings and to adduce new evidence. The following are our reasons for rejecting this application: 1. In considering the matter, a prime consideration is the objective and guiding principles of the Act. The "paramount consideration" is the protection of the health and safety of the public (section 3A). One of the objectives in achieving this paramount consideration is the need to ensure that "only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner" are registered (section 3 (2) (a)). This informs the manner in which we are required to carry out our duties as described above. 2. In considering the matter afresh, as we are required to do, we are entitled to, and should have regard to all of the information and evidentiary material which is reasonably available and appropriate in all the circumstances to be considered in determining the matter. Of course, whether and to what extent it is appropriate to take such information and evidentiary material into account will ultimately involve an exercise in balancing the provenance and probative value of that information and material in terms of the matter under consideration against any undue or inappropriate prejudice to the appellant. All of this must be considered in the context of the manner in which section 150 operates and its raison d'etre, and our need to take into account the protection of the public health and safety. 3. The respondent had not conducted itself in any manner which would entitle us to preclude it from seeking to reopen its case on the grounds set out in the affidavits of the legal officer which we have earlier described. Whilst it is true that the respondent may have been able to obtain the further evidence which it wished to adduce at an earlier time, there is insufficient indication of any procrastination on its part to deny it the opportunity to seek to reopen its case. The unfortunate delay in determining the proceedings initially arose because firstly we required additional submissions concerning the status of the police facts charge sheet and secondly both parties failed to address the protection of the health and safety of the public ground which we indicated was a matter that was of concern to us. The subsequent reasons for delay have been referred to by us previously in these reasons for decision. In the circumstances, although we acknowledge and have stressed to the parties that the delay has disadvantaged the appellant, such delay has not in our opinion created any situation which would militate against allowing the respondent to seek to reopen its case We must emphasise that in making this point, we were asked by the appellant to make a decision and give reasons therefore prior to determining whether the respondent should be permitted to reopen its case. Given the state of the proceedings as we have outlined them, it was not appropriate to preclude the respondent from applying to reopen its case, and therefore it would not have been appropriate to uphold the appeal, assuming that we were minded to do so, before deciding whether to allow the respondent to reopen its case. Allowing the respondent to do so might arguably put us in a better position to determine overall whether the appeal should be allowed or dismissed because we may (or may not) have available to us evidentiary material which will allow any decision to be a more informed one. 4. Once seized with the appeal, we are duty-bound to determine it according to law. We do not understand that there is any facility to decide that the matter under consideration should be more appropriately dealt with by the Council rather than this Tribunal as the appellant contended. Prima facie, our powers on appeal are set out in section 159C of the Act. We may terminate, vary or confirm a period of suspension by way of "order". No such "order" could be validly made without determining whether a period of suspension might be terminated, varied or confirm. This would preclude any referral back to the Council without having first made a determination to found such an order. 5. Our decision, that we should allow the respondent an opportunity to seek to reopen its case, is sufficient justification to have rejected the application made by the appellant. Putting this matter to one side, and in the alternative, we are of the opinion that we are entitled to consider the matter by reference to the protection of the health or safety of any person or persons, in addition to, or alternative to the public interest ground. In so stating, we again refer to the combined effect of sections 159 and 150 which permit us to consider afresh the matter under consideration by the delegates of the Council. We agree with the submissions of the respondent that there was no particular formulation of the matter and how it was to be approached in the proceedings before the delegates, and certainly no pleadings in any formal or informal sense. We are not bound by any course of action taken by the delegates, nor are we bound to observe the dictates of the parties as to the manner in which, or the grounds upon which, these appeal proceedings are to be disposed of. In saying this, we should not be taken to imply that we would not give appropriate and respectful consideration to the submissions of the parties which, in most respects, have differed in any event. To date, the appellant has declined to advance any formulated submissions about the relevance of the public health or safety ground, presumably consistent with his position that we are precluded from considering it. Furthermore, until the most recent hearing, the respondent also declined to adopt this ground as being either appropriate or relevant. Perhaps there are compelling reasons why the delegates chose to focus on the public interest ground, and equally compelling reasons why the parties have declined to embrace the alternative ground which we have advanced. As we indicated in the course of dialogue with the parties, we had a preliminary, but not concluded, view that the circumstances surrounding the issue of the second prescription, combined with the fact that the appellant had afforded medical treatment to his wife and that the appellant had allegedly lied to the police in the manner set out, might be indicative of a medical practitioner who might not be practising medicine appropriately and ethically, and who may otherwise have acted unethically such that, in total, the health or safety of persons who might be his patients might be compromised. That is, these matters might arguably go to and impact upon the practice of medicine by the appellant as a medical practitioner, and thus might need to be taken into account in terms of the public health or safety ground. Whilst the criminal charge brought against the appellant may be the catalyst for the disclosure of these three areas of alleged conduct, the fact that the appellant has been charged with a crime may not of itself, and without more, be a reason why he should be suspended from practice as a medical practitioner, given his entitlement to the presumption of innocence. Arguably, the presumption of innocence is a powerful factor. Much will depend upon such background information and evidentiary matters that can be adduced surrounding the charge. We have not yet come to consider these matters in the context of these appeal proceedings, because we were uncomfortable in doing so before receiving supplementary submissions from the parties about the status of the police facts charge sheet, and what weight we should accord to the factual matters set out therein, by reference to both the public interest ground and the protection of the health and safety of the public ground. Such supplementary submissions have not yet been received by us. Of course, if either or both parties had declined to furnish that assistance to us, we would have proceeded to determine the matter as best we could in all the circumstances, but we doubt that this would have occurred given the participation of legal practitioners and their concurrent duty to this Tribunal. The fact that these supplementary submissions have not been made is another reason why we declined to uphold the appeal, as contended for by the appellant. We acknowledge that the course of the proceedings since declining to uphold the appeal and in permitting the respondent to re-open its case has now largely overtaken the position which the appellant has advocated. 6. The discussion setting out our reasons for declining to uphold the appeal also needs to be considered against our concern that section 150 might be interpreted so that the public interest excludes the public protection ground. This concern also militates towards the need for a fully considered deliberation of the public protection ground in determining the outcome of these proceedings.

Who is the Decision Maker?

1. At the conclusion of receiving submissions concerning the application made by the appellant, we asked the parties to provide some assistance in determining whether the application was one which should be dealt with by the Tribunal, or the presiding member. The respondent directed our attention to the provisions of section 57 (2) of the Civil and Administrative Tribunal Act which provides that where a question of law arises in proceedings before the Tribunal and one or more members is an Australian lawyer, the opinion of that member is determinative of the question of law. The appellant focused attention on section 31 (2) (a) of the same Act which, in proceedings dealing with an external appeal (which these proceedings are), the Tribunal has jurisdiction to make ancillary and interlocutory decisions. We regard the decision which we have made as being an interlocutory decision, for reasons which we hope are not necessary to describe. We do not regard the making of the decision as itself determining a question of law, although we acknowledge that in our reasons we have traversed mixed questions of fact and law. We further acknowledge that there are many circumstances where controversy arises about whether a particular matter involves a question of law, a question of fact or a mixed question of fact and law. We have not troubled the parties for submissions about the characterisation of our decision and our decision making process. We apprehend that the respondent may have taken the view that our determination involved a question of law, and that the appellant may have taken a different view. The resolution of these proceedings has been delayed longer than we would have liked, and are certainly more complex than the "usual" matters that find their way to the Tribunal by way of appeal under section 159 of the Act. In order to resolve the matter without incurring any further delay and costs, we should state that each of us is in agreement both individually and collectively with these reasons for decision, and it follows that the presiding member separately is in such agreement. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 August 2015