DZR v Medical Council of NSW

NCAT Occupational|2019-09-06

Introduction

These reasons deal with an application by Dr DZR for a stay of a condition imposed on his registration by the Medical Council of NSW on 16 August 2019. The stay is sought pending determination of Dr DZR's appeal lodged with the Tribunal on 22 August 2019. Dr DZR also seeks an order restricting publication of his name.
Dr DZR is a medical practitioner who is employed in a busy general practice on the central coast of NSW. He obtained his original medical qualifications in Egypt in 1989 where he practised for approximately 23 years. He came to Australia in 2013 as a refugee. He subsequently passed his AMC examinations and became registered in New South Wales in 2018 with limited registration.
A complaint was made to the Health Care Complaints Commission (HCCC) by a psychiatrist about Dr DZR. The psychiatrist reported being told by a female patient that, whilst under the care of Dr DZR, she was involved in a sexual relationship with him. The relationship is asserted to have taken place at Dr DZR's place of practice during consultations in about May and June 2019. Dr DZR strenuously denies any conduct of a sexual nature with the patient.
As a result of the complaint, proceedings were convened under s 150 of the Health Practitioner Regulation National Law (the National Law) on 16 August 2019. At the conclusion of the proceedings conditions were placed on Dr DZR's registration by the Council. In broad terms, the conditions limit the number of patients that Dr DZR can treat in any day, require him to comply with the Council's practice monitor policy, as varied from time to time, and to practice under Level B supervision also in accordance with the Council's supervision policy. In this application, Dr DZR does not seek that any condition, other than the condition imposing the requirement for a practice monitor, including the requirement of the posting of a notice in the reception area of the practice, be stayed.
Dr DZR lodged an external appeal in the Tribunal under both s 159 and s 159B of the National Law on 22 August 2019 against conditions 3, 4 and 8, the Level B supervision condition and a condition he attend a performance review.

Jurisdiction to hear this application

It is not in doubt that this Tribunal does not have jurisdiction to hear and determine a stay pending an appeal against conditions placed on a practitioner's registration under s 159 of the National Law (see Medical Council of NSW v Lee [2017] NSWCA 282).
The Tribunal does have jurisdiction to grant a stay in respect of an appeal on a point of law.
As best as I can discern from the External Appeal Form the "point of law" relied on is that the delegates of the Council denied Dr DZR the opportunity to address them on a variation (Condition 4a) of the Council's supervision policy thus raising an issue of a lack of procedural fairness, and/or that the imposition of conditions 3, 4 and 8 was unreasonable.
In his helpful written submissions Mr Hutchings, counsel for Dr DZR, refers to the imposing of the practice monitor condition being an "error of law" and he cites as authority for this position Medical Council of Lee [2017] NSWCA 282 and Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
Sackville AJA in Medical Council v Lee does not address what is encompassed by the phrase "point of law".
The phrase "point of law" has been subject of consideration in the Court of Appeal. In Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [15]-[16] Basten JA explained: In Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653 at [124], Spigelman CJ (Priestley JA agreeing), after noting that the phrase in consideration in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 137 used the formulation "point of law", not "error of law", continued: "The expression 'question' or 'point' of law is wider than 'error of law'." The different formulations to which his Honour referred may need to be read in context in order to identify their differential effect. Thus, the provision in issue in Attorney-General (NSW) v X was the power of the Attorney to submit "any question of law arising from or in connection with" contempt proceedings, to the Court of Appeal: Supreme Court Act 1970 (NSW), s 101A(1). The provision in question in Azzopardi was one conferring a right of appeal on a party to proceedings in the Workers Compensation Commission who was "aggrieved by any award, order, ruling, direction or decision of the Commission, in point of law or in relation to the admission or rejection of any evidence": Workers' Compensation Act 1926 (NSW), s 37(4)(a) (as in force prior to the Workers' Compensation (Amendment) Act 1984 (NSW). Other provisions confer a right of appeal "on any question of law arising out of an award", being the language of the Commercial Arbitration Act 1984 (NSW), s 38(2). In the present case, the right of appeal lay against "a decision of the Tribunal with respect to a point of law". There may be some ambiguity as to whether it is the appeal or the decision which must be with respect to a point of law: however, to require the identification of a decision with respect to a point of law would so limit the operation of the provision as to render the construction untenable, in the absence of clear authority requiring that approach. As already noted, the authority is to the contrary. Accordingly, it is sufficient if the Appellant can identify a decision of the Tribunal which, if it is not the ultimate decision is material to it, and that the decision was erroneous in point of law.
Basten JA, with whom Allsop P agreed, in CSR Ltd v Amaca Pty Ltd [2009] NSWCA 338 at [86]-[91] discussed the meaning of the phrase "point of law" as it applied to an appeal to the Court from the Dust Diseases Tribunal. At [89] his Honour explained: The scope of phrases such as "question of law", "point of law" and "error of law" is less clear. Guidance may be obtained from the established grounds of judicial review, but these are often stated in terms of categories (of which error of law is one) which are notoriously imprecise and which overlap. Nor does the analogy with judicial review allow for the constraint in legislation which requires identification of a decision of the tribunal below on a question, or in point, of law. It may also be erroneous to assume that such an error is to be equated with the kind of error which would permit interference with a discretionary decision, in accordance with the principles established in House v The King [1936] HCA 40; 55 CLR 499 at 505.
I return to the guidance afforded in these decisions at the conclusions of these reasons.

The relevant statutory provisions - stay

The object and guiding principles of the National Law are found in s 3 and s 3A (the latter being a NSW provision). Those provisions which guide and inform decision making under the National Law are as follows: 3 Objectives and guiding principles (1) The object of this Law is to establish a national registration and accreditation scheme for - (a) the regulation of health practitioners; and (b) the registration of students undertaking - (i) programs of study that provide a qualification for registration in a health profession; or (ii) clinical training in a health profession. (2) The objectives of the national registration and accreditation scheme are - (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; and (b) to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and (c) to facilitate the provision of high quality education and training of health practitioners; and (d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and (e) to facilitate access to services provided by health practitioners in accordance with the public interest; and (f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners. (3) 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; (b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme; (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. Note. This section is an additional New South Wales provision.
The delegates' decision was one made under s 150 of the National Law. Section 150 provides as follows: 150 Suspension or conditions of registration to protect public [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest - (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or (c) by order impose on a student's registration the conditions the Council considers appropriate. (2) A suspension of a registered health practitioner's or student's registration under subsection (1) has effect until the first of the following happens - (a) the complaint about the practitioner or student is disposed of; (b) the suspension is ended by the Council. (3) If a Council for a health profession is satisfied a health practitioner or student registered in the profession has contravened a critical compliance order or condition, the Council must - (a) suspend the practitioner's or student's registration until a complaint concerning the matter is dealt with by the Tribunal; and (b) refer the matter to the Tribunal as a complaint. (4) A Council for a health profession may take action under this section - (a) whether or not a complaint has been made or referred to the Council about the practitioner or student; and (b) whether or not proceedings in respect of a complaint about the practitioner or student are before a Committee or the Tribunal. (5) Without limiting the conditions that may be imposed under subsection (1)(b), a Council may impose a condition requiring the registered health practitioner to undergo a performance assessment, but the condition has no effect unless the Commission agrees with the imposition of the condition. (6) A Council must give written notice of action taken under this section to the registered health practitioner or student concerned. (7) If a Council delegates any function of the Council under this section to a group of 2 or more persons, at least one of those persons must be a person who - (a) is not a registered health practitioner or student in the health profession for which the Council is established; and (b) has not at any time been registered as a health practitioner or student in that health profession under this Law or a corresponding prior Act.
It is asserted that Dr DZR's substantive appeal is based on two provisions of the National Law (s 159 and s 159B). Those sections are as follows: 159 Right of appeal [NSW] (1) A person may appeal to the Tribunal against any of the following decisions of a Council for a health profession - (a1) against a reprimand by the Council for the health profession under Division 3; (a) against a suspension by the Council for the health profession under Division 3 or a refusal to end a suspension; (b) against conditions imposed by the Council for the health profession on the person's registration under section 127AA or Division 3 or 4 or the alteration of the conditions by the Council; (c) against a refusal by the Council for the health profession to alter or remove conditions imposed by the Council under Division 3 in accordance with a request made by the person under section 150I; (d) against a decision by the Council for the health profession to give a direction or make an order in relation to the person under section 148E; (e) against a refusal by the Council for the health profession to alter or remove conditions imposed on the person's registration, or to end a suspension, imposed under Division 4 in accordance with a request made by the person under section 152K. Note. An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. (2) An appeal may not be made in respect of a request by a person that is rejected by a Council because it was made during a period in which the request was not permitted under section 150I or 152K. (3) The appeal is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council, may be given. 159B Appeals on point of law [NSW] (1) A registered health practitioner or student who is the subject of action taken by the Council for the health profession under section 150, 150A or 150C may appeal, with respect to a point of law, to the Tribunal. Note. An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. (2) Subsection (1) does not limit a right of appeal under section 159. (3) The Council must not make a decision that is inconsistent with the Tribunal's decision with respect to a point of law under this section. (4) A registered health practitioner or student may not make an application to the Supreme Court for judicial review of action taken by a Council under section 150, 150A or 150C, being an application alleging any error of law, until an appeal under this section in respect of the point of law concerned has been made and disposed of.
As I have noted above, in Medical Council of NSW v Lee, Sackville AJA explained there is no power under the National Law to stay a decision of a Council pending an appeal under s 159 of that law. The provisions of the National Law provide an exclusive code, and the stay provisions of the Civil and Administrative Tribunal Act 2013 (NSW) have no application. However, the Tribunal may stay a decision pending an appeal on a point of law under s 161B and s 165L(2). Those provisions as follows: 161B Appeal does not stay decision [NSW] An appeal under this Division does not operate to stay the effect of the decision being appealed against unless the Tribunal otherwise orders. 165L Interlocutory orders [NSW] (1) …. (2) The Tribunal may, in respect of an appeal under section 159B, make an order staying the decision of the Council appealed against until the appeal has been disposed of. (3) …

Principles relevant to the granting of a stay

In Hill v Medical Council of NSW [2019] NSWCATOD 52 I referred to the relevant principles to be applied in determining an application for a stay at [21] as follows: The relevant principles in a protective jurisdiction are succinctly summarised by Professor Millbank in Liu v Chinese Medicine Council of NSW [2019] NSWCATOD 13 at [11]-[12] as follows: There is a wealth of general guidance on principles to be considered in exercising a stay power: Commissioner of Taxation v Myer Emporium Ltd [No.1] [1986] HCA 13; Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Ltd [1986] HCA 84. In the context of this Tribunal, Wright J on behalf of the Appeal Panel summarised such principles in Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 as including: (1) The onus is on an applicant for a stay to make out a case that it is appropriate to make such an order. (2) An order staying the operation of a decision or orders will generally be appropriate where such an order is reasonably necessary to secure the effectiveness of the appeal. (3) The Tribunal may take into account the strength or otherwise of the case of the party seeking the stay. (4) The Tribunal's power to grant a stay includes a power to make such an order subject to such conditions as the Tribunal specifies. (5) In exercising the discretion the Tribunal will weigh the balance of convenience and the competing rights of the parties and may impose appropriate conditions so as to achieve a result that is fair to all parties. (6) The overriding principle in an application for a stay is to ask what the interests of justice require. These general principles must be considered and applied within the specific context of the National Law, in particular the object and guiding principle expressed in s 3(2)(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, and the paramount consideration of the protection of the health and safety of the public in s 3A: Kesserwani v Chiropractic Council of NSW [2015] NSWCATOD 77.

The evidence and submissions on behalf of Dr DZR

Dr DZR relied on two affidavits of Emma Mary Winch which were affirmed respectively on 29 August 2019 and 6 September 2019. A copy of the delegates' reasons was provided during the course of the hearing.
The evidence and submissions relied on by Dr DZR may be summarised as follows: 1. That upon the publication of the conditions, an additional condition was imposed concerning the display of a notice at the practice where Dr DZR is employed. 2. That the practice has determined to terminate Dr DZR's employment in the event that such a notice is required to be displayed. 3. The complaint which resulted in the practice monitor condition being imposed is not a complaint by the patient, but a hearsay report of the patient's treating psychiatrist. There is no statement by the patient. 4. There are no particulars of the asserted sexual misconduct. 5. The file note of a telephone conversation between a HCCC staff member, the psychiatrist and the patient intermingles a recording of what the patient said and what the psychiatrist said. 6. Dr DZR denies any inappropriate sexual behaviour. 7. It is inherently unlikely that the asserted behaviour could have occurred. Appointments were for 10 to 15 minutes, consulting room doors are not locked and staff can come in and out. Dr DZR uses Viagra for sexual functioning and sexual activity requires pre-planning. 8. Dr DZR prescribed Lyrica for the patient. This drug was unsuitable for a patient on a drug rehabilitation program and/or her use of this drug led to her exclusion from the rehabilitation program. However, the initial prescriber of Lyrica was not Dr DZR but his supervisor. 9. The patient was excluded from a drug rehabilitation program, she is reported to suffer PTSD and has a history of a previous sexual assault. This suggests that the patient's complaint is likely to be unreliable. No documents have been obtained from the rehabilitation facility. 10. There is no note that the patient reported sexual activity to the psychiatrist when she saw her on 6 June 2019 at a time the sexual activity is asserted to have occurred. 11. The conditions imposed are unnecessarily harsh and oppressive.

The Council's submissions

The Council's submissions recite the background to the imposition of the conditions. Under the heading "Reasons for suspension decision" (which is clearly an error as Dr DZR's registration has not been suspended), the Council refer to the delegates' consideration of the Medical Board of Australia's Sexual Boundaries: Guidelines for Doctors. The submissions then set out the conditions imposed on Dr DZR's registration and note it is only condition 3 which is the subject of this stay application.
The submissions note, correctly, that the requirement for a notice in the reception area of the general practice is not an additional condition, but is part of the practice monitor policy.
The submissions, again in broad terms, note: 1. The delegates had the benefit of the file note of the conversation between the HCCC's assessor and the patient. 2. The allegations are that Dr DZR, after 3 or 4 consultations, began to get very "touchy feely" and was leaning into and touching the patient's legs. This led to him kissing her and the relationship became sexual. 3. The delegates took into account that Dr DZR denies the allegations. 4. When questioned by the delegates, Dr DZR provided detailed information about the patient but this was not recorded in her medical notes (obesity, aggression, refusal to provide a history). 5. The delegates noted their task was not to make factual findings but to determine whether "there was such implausibility to the allegations such that risk to the public can be discounted" or, in the alternate, "potential risk to the public that is at least plausible given the information gathered so far". 6. The patient's report of the sequence of events was plausible and consistent with the time Dr DZR carried out chest examinations. 7. The delegates had appropriate regard to the submissions about Dr DZR's use of Viagra, but they made no assumptions about what type of sexual activity could have occurred. 8. The delegates had taken into account the submissions made by Dr DZR's representatives about the unreliability of the patient due to her medical history. 9. The delegates nevertheless considered potential risk to the public warranted action and made the interim measure concluding it was necessary until further information is available. 10. As required under the National Law, the delegates had referred to the matter to the HCCC for investigation.

Material before the Council

The Council had a formal complaint made to the HCCC by the psychiatrist. Also before the delegates was file note of a telephone conversation between Ms N Horton from the HCCC, the psychiatrist and the patient.
The file note discloses: [Patient's first name] said that after three to four consultation, Dr DZR began to get very touchy-feely leaning in and touching her legs with his legs. This led to him kissing her and the relationship then became sexual [Patient's first name] said that she does not think the relationship was appropriate, she feels she was in a very vulnerable position, undergoing rehab. She said that she was not forced, but she doesn't want this to happen to anyone else. [Patient's first name] said they engaged in sexual activity at every appointment from there, and that this occurred during the consultation and in the consultation room.
The file note also records the psychiatrist saying that the patient had been prescribed Lyrica and as a result of taking this drug she had been excluded from the rehabilitation program.
The delegates also had the patient's clinical notes from the general practice. The transcript of the s 150 proceedings discloses that there was significant questioning of Dr DZR about his prescribing, including the writing of repeat prescriptions for medications prescribed by other medical practitioners, including his supervisor. It was not in dispute that Dr DZR did not write the original prescription for Lyrica. The original prescription was written one day before Dr DZR wrote a repeat prescription when the patient stated she had lost her prescription. No note was made by Dr DZR that the prescription was asserted to have been lost, nor did he investigate why Lyrica was prescribed.

The Medical Council's reasons

It is unnecessary that I repeat in detail the reasons of the delegates acting on behalf of the Council. The first six pages of the decision recite background information about the practitioner, and the delegates' concerns about his clinical skills, particularly record keeping. Under the heading "Notified concern of alleged boundary crossing" the reasons refer to the HCCC file note, the contents of which I have set out above.
The delegates, at page 7, set out comprehensively Dr DZR's complete denial of the allegations and his description of the patient being "eratic" at her first consultation. He is reported saying at that appointment he had no chance to examine her or take her blood pressure.
The delegates also record Dr DZR's description of the second appointment when he reported the patient said she had previously used dexamphetamine, marijuana and ice, that she was in rehabilitation and had medication for a diagnosis of bipolar disorder. He also reported the patient told him she needed blood tests, hormonal tests and hepatitis serology. The delegates noted that none of this information was in the patient's notes.
The delegates also record Dr DZR's explanations of consultations in May 2019 which he said were very short. He also referred to letters from the psychiatrist and the rehabilitation service that were part of the patient's records.
The delegates also recorded Dr DZR's oral evidence that there were three examinations of the patient which involved chest examinations with just a stethoscope. The delegates also recorded Dr DZR's saying the patient was huge, obese and that he "might have touched her legs", that he said sorry and moved his chair, which had wheels, back from the patient.
The delegates explained: It is not our role to decide if the allegations are factually true or not, or if the alleged relationship occurred or any described incidents. We do however have a role to decide if there is an implausibility to the allegations such that risk to the public can be discounted, or alternatively, if there is a potential risk to the public that is at least plausible given the information gathered so far. The patient's understanding of the sequence of consultations she attended with Dr DZR at least appears to be correct. The patient's description of when some form of touching occurred, after three to four consultations, could be consistent with the timeframe of the chest examination and re-examination at consultations with Dr DZR from early May 2019.
The delegates referred to the layout of the medical practice, the evidence that the consulting room doors were never locked, and the implausibility of sexual activity having occurred as "Dr DZR requires Viagra and needs planning for sexual activity", and went on to record the submission made on behalf of Dr DZR that it was not feasible that sexual intercourse occurred.
The delegates noted they could not place significant weight on the submissions referred to above partly because the type of touching or sexual activity is not specified. The delegates recorded: We have very little detailed information from the complainant, therefore we cannot discount either account. We make no assumption or conclusion about what type of activity is alleged, but note that there is a potentially wide variation in types of touching that could be interpreted as sexual activity.
The delegates recorded submissions made by Dr DZR's counsel about the need for caution given the fact the patient did not report a sexual relationship or concern to the practitioner's supervisor on 26 June 2019 when she saw him, but returned to see Dr DZR the following day, and that her history may be "skewed" by her medical history and exclusion from the rehabilitation program. Reference was also made to the excellent references provided by members of the practice for Dr DZR.
The delegates concluded: Despite this speculation on the part of Dr DZR's counsel, our concern for a potential risk remains. As we do not consider the notified concern implausible, we consider the potential risk to the public is an issue which warrants action. We are not fact finders, and consider the protective action to be an interim measure that is necessary, until further information is gathered to allay concerns, or the investigation by the HCCC or any further consideration of the allegation is concluded satisfactorily.

Consideration

Although Dr DZR asserts that unless the monitoring conditions are stayed, he will lose his employment that assertion is not established on the evidence. I was told that Dr DZR's supervisor is overseas and is presently unable to provide evidence that his employment will be terminated. At its highest, the evidence before me is the affidavit of Dr DZR's solicitor which records a conversation between her and the practice manager that the practice "was considering" terminating his employment. Thus I am not satisfied on this basis that if the stay is not granted it will render Dr DZR's appeal nugatory.
I have also considered the submission that an additional condition was imposed by the Council when the conditions were published by the requirement of the posting of a notice in the practice waiting room. I do not find this submission is factually correct. The notice requirement is part of the policy and therefore was always part of the practice monitor policy to which the practitioner must adhere pending the hearing of his appeal, or on a review before the Council.
I ascertained from Mr Giles, the solicitor from the Medical Council, that the wording of the notice required by the policy is that set out in the annexure to the affidavit of Emma Mary Winch affirmed 29 August 2019 at p 208. Such a notice does not include any information about the allegation against Dr DZR and simply refers to the fact he sees all female patients with a practice monitor. It is unlikely that a notice in this form would adversely affect the reputation of the practice. However, I accept that, very properly, the information sheet required to be signed by the patient does disclose that a complaint about the practitioner is being investigated, and while the investigation is occurring that Dr DZR will have a practice monitor in place during consultations. This may result in some patients declining to see the practitioner.
I turn then to consider the strengths and weaknesses of the appeal. I have had careful regard to the questioning of Dr DZR about his records, prescribing practices and his failure to record relevant information in the clinical records. Dr DZR has only been practising in Australia for a limited period. I accept he is highly regarded by his supervisor Dr K Ghaly, the principal of the practice in which Dr DZR works. It is unnecessary for me to assess on this application the strength or weakness of the grounds articulated in the Notice of Appeal which challenge not only the practice monitoring condition but the other conditions imposed by the delegates. I note that on this application Mr Hutchings submitted that no issue is taken with the delegates' decision except the practice monitoring condition.
The gist of the case agitated for Dr DZR on this stay application is that the delegates erred in law in their interpretation of s 150. At para 21 Mr Hutchings submits: The characterisation of the delegates task does not accord with the content of section 150 of the National Law (see below). A proper state of satisfaction is required.
Mr Hutchings also submits that Dr DZR was entitled to the presumption of innocence "which is a fundamental principle of the common law of Australia".
At para 31 of his submissions Mr Hutchings notes: It is submitted that the proper conclusion at which the delegates ought to have arrived was that in the absence of detailed information no appropriate state of satisfaction could be arrived at that it was appropriate to take any action under section 150 in respect of the complaint.
Earlier at para 29 Mr Hutchings submits: Again, the proposition of "touching" appears to have been relied upon as corroborative of the allegation of contact of a sexual nature. It could not rationally be so.
I take this opportunity however to note that the appeal is a hearing de novo and with the adducing of further evidence the Tribunal may reach a different conclusion.
I accept that the evidence of the sexual misconduct is very generalised. The patient's evidence is completely refuted by the practitioner. Again, at the hearing of the appeal, the Tribunal will be in a much better position to assess the veracity of the complaint and weigh up risk factors particularly after it has the benefit of seeing Dr DZR and hearing his evidence and perhaps obtaining the psychiatrist's records and those of the rehabilitation centre under a Summons. However, I am not presently satisfied there was insufficient evidence of risk to the public for the practice monitor condition imposed to be stayed.
In reaching this conclusion, I note the fundamental proposition advanced on behalf of Dr DZR is that the delegates' reasoning and decision was so unreasonable that no reasonable decision maker could have made the decision (the Wednesbury unreasonableness argument). It will be remembered that in Wednesbury the Master of the Rolls, Lord Greene, explained in his speech the limits on a Tribunal's interference with a discretionary administrative decision. His Lordship explained: When discretion of this kind is granted the law recognizes certain principles upon which that discretion must be exercised, but within the four corners of those principles the discretion, in my opinion, is an absolute one and cannot be questioned in any court of law. What then are those principles? They are well understood. They are principles which the court looks to in considering any question of discretion of this kind. The exercise of such a discretion must be a real exercise of the discretion. If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters. Conversely, if the nature of the subject matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question, the authority must disregard those irrelevant collateral matters.
When considering what is meant by acting reasonably his Lordship stated: For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably." Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington L.J. in Short v. Poole Corporation (1) gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might also be described as being done in bad faith; and, in fact, all these things run into one another.
Dr DZR's submissions refer to the decision of Meagher JA in HCCC v Do [2014] NSWCA 307. In dealing with a stay application on the basis there is an appeal on a point of law, I do not find the remarks of his Honour have direct relevance to this stay application pending the hearing of an appeal. His Honour was referring to intent and purpose of protective orders made at the conclusion of disciplinary proceedings.
Nor do I find the reference to my decision in Hill v Medical Council of NSW [2019] NSWCA 52 has direct relevance to this application. In Hill v Medical Council the Council had reached a conclusion there was no risk to the public, and the determination which led to the practitioner's suspension was based solely on the words "otherwise in the public interest" in s 150(1). In this matter, the delegates' focus was principally on the first limb of s 150, namely the protection and safety of any person or persons. I agree with the submission and the comments of Murell DCJ (as her Honour then was) in Woolcock v Medical Board [2009] NSWMT 3. It is to be remembered that these proceedings are civil proceedings where there must be special focus on the safety of the public.
While I accept that Dr DZR's evidence of his use of Viagra has some relevance that relevance is limited to sexual intercourse. It is not apparent from the evidence that the asserted sexual conduct included sexual intercourse. Accordingly, Dr DZR's use of Viagra cannot be determinative of the matters in issue. Thus is follows, I am satisfied there was no error by the delegates in giving little or no weight to that factor.
Nor do I accept that the delegates failed to give weight to Dr DZR's position that he did not engage in the behaviour alleged. It was the delegates' task to consider, having regard to all relevant matters, including the practitioner's denials, whether it was satisfied it was appropriate for it to impose conditions for the protection of the health and safety of the public. The delegates weighed all the evidence before them. The submissions do not canvass any matter taken into consideration by the delegates that was irrelevant. While the sexual conduct is not otherwise particularised, the fact the patient complained that the practitioner kissed her during a consultation will, if proven, constitute a breach of the Medical Board of Australia's guidelines. That aspect of the complaint was a relevant matter to be taken into account by the delegates in the exercise of their discretion.
I note it is not my task in this stay application to determine the merits of the appeal. While the delegates' reasons refer to the plausibility of the evidence, the crux of the delegates' decision, although not using the words of the statute, appears to make it clear they were satisfied on the evidence before them that it was appropriate to make the order.
I turn then to the competing rights of the parties and the balance of convenience. Dr DZR clearly wishes to continue his practice as an employed medical practitioner. He has financial responsibilities and any constraint on his right to practice can have serious implications for him. That is a significant factor to be taken into consideration.
The transcript of the hearing and discussion about conditions between the delegates and Dr DZR and his legal representatives discloses on the evidence available to the delegates a proper basis for the conditions imposed. This evidence is reflected in the delegates reasoning.
I do not find the competing rights of the parties can be determinative of this stay application. In reaching that conclusion, I am conscious that this stay application has been brought on in a short time frame, and on the appeal further evidence may advance the position of either party. Further, and of more significance, different criteria come into play where the issue of the protection of the public must also be at the forefront of any stay decision. The monitoring condition may be a short term measure only until it is reviewed or the appeal is heard. However, it protects any female patient of Dr DZR until matters are fully investigated. That fact is a very relevant criteria for consideration. Accordingly, I find the application for a stay of condition 3 should be refused.
For completeness, I note that while prima face this stay application is framed as one brought pending an appeal on a point of law, I agree with the submission made on behalf of the Council that it is not clear, at least at this point in time, that there was a point of law wrongly determined by the Council. Rather, it would appear the true challenge is one of a challenge to the exercise of discretion by the Council (see House v The King [1936] HCA 40; 55 CLR 499). This conclusion supports refusal of the stay on a jurisdictional basis. However, the practitioner is agitating appeals under both s 159 and s 159B and the "point of law" can be fully explored at the hearing of those appeals.

Expedition of the appeal

Given the competing strengths of each party's position, I was satisfied that it is appropriate for this appeal to be expedited. Such expedition will potentially minimise the hardships the conditions impose on Dr DZR, but will enable the conditions, if any, to continue to be imposed on his registration to be fully explored at the hearing of the appeal.

Non-publication order

Dr DZR's external appeal seeks under the heading "Grounds of Appeal" the making of a non-publication order. The request for a non-publication order is not one of the orders sought in the Stay Application. Neither party's oral or written submissions refer to a non-publication order.
The principles in respect of non-publication or suppression orders are well established. I refer to the relevant principles in my decision in Hill v Medical Council of NSW. However, in this case where the issue was not addressed by the parties in the context of an urgent stay application, matters of procedural fairness arise.
In accordance with usual practice, although no order was sought restricting publication of the patient's name, I have not referred to her name in these reasons.
I have taken into account that the evidence in this Stay Application includes sensitive medical information concerning Dr DZR. In these circumstances, and pending the opportunity for full argument on the topic at the hearing of the appeal, I propose to grant an interim non-publication order in respect of the practitioner's name under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW). The Tribunal hearing and determining the appeal can, after hearing full argument on the topic, properly determine whether the order should be continued.

Orders 1. The application for a stay is refused. 2. Pending further order, pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made prohibiting the publication of the name of the applicant and the patient referred to in the Medical Council's decision dated 28 August 2019.

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: 13 September 2019

Workers' Compensation Act 1926(NSW)

Workers' Compensation (Amendment) Act 1984(NSW)

Commercial Arbitration Act 1984(NSW)

At a glance

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Judgment (13 paragraphs)

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Legislation Cited (5)

Cases Cited (15)

Cited By (1)