Freeman v Sydney Local Health District

Supreme Court of NSW|2021-02-11|Before: Rothman J, Esm AM

Solicitors: Lancaster Law & Mediation (Plaintiff) Crown Solicitor's Office (First/Second Defendants) File Number(s): 2020/287874 Decision under appeal Court or tribunal: New South Wales Health, Committee of Review Date of Decision: 9 September 2020 Before: Ms Geri Ettinger (Chairperson), Dr Denis Smith, Dr Malcom Stuart and Mr Adam Johnston

Judgment

HIS HONOUR: By Summons filed on 6 October 2020, the plaintiff, Dr Anthony Freeman, seeks judicial review of a decision, the effect of which was that the plaintiff had no right of appeal against his non-appointment to a position as a Visiting Medical Officer (hereinafter "VMO").
The decision was purportedly made by the Committee of Review, constituted by Ms Geri Ettinger, Dr Denis Smith, Dr Malcom Stuart and Mr Adam Johnston, which, in these reasons, will be referred to as "the Committee". The Committee is the second defendant in the proceedings; the first defendant being Sydney Local Health District (also referred to as the "SLHD").
The orders by way of judicial review that are sought by the plaintiff are that the determination of the Committee made on 9 September 2020 be quashed; a declaration that the Committee's determination that it did not have jurisdiction to hear the plaintiff's appeal was an error of law; an order that the matter be remitted to the Committee to be heard and determined according to law; and costs. While the Amended Summons refers to the determination by the Committee that it did not have jurisdiction as an error of law, and in that respect may be correct, it is, if the ground were established, an error of jurisdiction for which, previously, orders in the nature of mandamus would issue.

Background

In 2019 the plaintiff was appointed as a VMO in the Department of Vascular Surgery at Concord Hospital. The plaintiff had occupied various roles as a Vascular Surgeon at Concord Repatriation General Hospital (hereinafter "Concord Hospital" or "CRGH"), since at least 2009.
The appointment in 2019 as a VMO took effect on 22 November 2019 and was made pursuant to the provisions of ss 76, 78 and 80 of the Health Services Act 1997 (NSW) (hereinafter "the Act").
The appointment made or taken up on 22 November 2019 was for a period of three months and the first defendant advertised for a position to which the plaintiff applied. In late 2019, the plaintiff applied for the position of a Vascular Surgeon in the Department of Vascular Surgery at Concord Hospital and on 10 January 2020 the plaintiff was informed that he was not the preferred candidate.
As a result of being informed that he was not to be appointed to the position, the plaintiff sought to appeal his non re-appointment, purportedly pursuant to the provisions of s 105 of the Act. The plaintiff purported to lodge an appeal pursuant to s 106 of the Act on 6 February 2020.
The Committee was constituted for the purpose of determining the appeal, purportedly pursuant to the terms of s 108 of the Act. It heard evidence and submissions on 20 and 21 August 2020.
On 9 September 2020, the Committee issued a decision in which one of the members of the Committee dissented and the effect of the majority decision, and therefore, it is said, the effect of the Committee's decision, was that it found that there is no jurisdiction to hear the matter, being the appeal, and it could not proceed to a substantive hearing. The minority or dissenting decision was not that of the Chairperson. The majority of the Committee said: "Based on the evidence and the legislation we are comfortably satisfied that the decision not to appoint Dr Freeman to the advertised VMO position was not with regard to a re-appointment, but a fresh appointment, within the terms of the legislation. Accordingly, there is no jurisdiction to entertain the purported appeal." [1]
In determining that there was no right of appeal under the Act, the majority described its task as being to decide whether Dr Freeman had standing to appeal the decision not to appoint him "to the quinquennium VMO position for which he applied".

Evidence

As would be expected in a matter for judicial review, the evidence is uncontentious, except in one regard. A Court Book was filed, compiled by the parties, which contains the Affidavit of Graham Lancaster, dated 6 October 2020.
Mr Lancaster is the plaintiff's solicitor on the record. The Affidavit is gratifyingly short and simply annexes the decision of the Committee, including the dissenting view. The term "decision", where used in these reasons to refer to the decision of the Committee, is a reference to the decision including the reasons therefor. [2]
Otherwise, before the Court, there is an Affidavit of Dr Andrew Hallahan, dated 23 November 2020, filed for the first defendant, the SLHD. The Affidavit purports to provide information on the numbers of Visiting Medical Officers employed by the first defendant and the kinds of appointments that are made, including three-month temporary appointments made under delegation.
It is not absolutely clear how, in terms of the record of the proceedings, this material can be admitted. Objection was taken to the admissibility of the material and it was admitted provisionally on the basis that the Court would deal with its admission into evidence in the final judgment.
The first defendant seeks to support its admissibility on the basis that it puts the Court in the same position as the specialist tribunal in terms of the Court's knowledge of the appointment and recruitment process and the kinds of appointments that are made. The error that is alleged is, on proper analysis, a refusal to exercise jurisdiction and, if correct, would be jurisdictional error, as earlier stated, otherwise amenable to mandamus, or orders in the nature of mandamus, pursuant to the terms of ss 65 and 69 of the Supreme Court Act.
While there may be error of law on the face of the record, there is an allegation of jurisdictional error, which may permit a party to adduce evidence relevant to the jurisdictional issue and may permit a party to put the Court in to the position, in terms of its state of knowledge, possessed by the decision maker. In relation to the latter aspect, the difficulty in the material in Dr Hallahan's affidavit, and on which the first defendant seeks to rely, is that it is not suggested in any of this evidence that the information contained in the Affidavit is information that was possessed by any one or all of the members of the Committee.
The experience of Dr Hallahan, as significant as that may be, is irrelevant to the knowledge of the members of the Committee, unless it can be said that the members of the Committee were also aware of all of this information. Nevertheless, some of the material may be admissible in determining pre-conditions to the exercise of the Committee's jurisdiction.
Having made that comment, it seems that the material should be admitted for the purpose of establishing primary and well-known facts, but not for the purpose of determining the purpose of appointments and the like. Such a latter purpose, unless established by the legislation and regulations, or shown to be within the knowledge of the members of the Committee, must be confined to the view of the deponent and inadmissible for the purpose of judicial review. Moreover, there are a number of aspects of the Affidavit that purport to swear to the legal position, albeit mostly in areas that are uncontentious. [3]
Similarly, to the extent that the Affidavit of Dr Hallahan purports to suggest that the first defendant is required to do certain things, as distinct from stating the practice of the first defendant, the existence of such a requirement is a matter for the Court, based upon the scheme governing the appointments. Ultimately, Dr Hallahan contrasts long-term and short-term VMO appointments and, although the Court is grateful for the statement of practice, it will not admit the material to prove the "purpose" of such appointments. Apart from any other factor, the facts in this case show at least some of those assertions to be incorrect. [4] Nevertheless, Dr Hallahan was not the subject of cross-examination.
The plaintiff had been a VMO at Concord Hospital since 2009 and continued in that position until November 2011. At that point in time the plaintiff was appointed Associate Professor at Concord Hospital as part of the Sydney University Medical School.
As a consequence of the plaintiff's professorial position, he resigned his VMO role at Concord Hospital. Notwithstanding that resignation, the plaintiff continued his clinical duties at Concord Hospital, as previously, in addition to undertaking both undergraduate and postgraduate teaching. The professorial position carried with it those clinical duties, but as an employee not as a contractor VMO.
As earlier stated, in October 2019, after discussions with the first defendant, the plaintiff accepted a short-term "temporary" three-month contract as a VMO, concluding on 20 January 2020. The appointment was as a VMO pursuant to a sessional service contract and for a period of three months.
The issue, fundamentally, between the parties is the construction of the term "re-appointment" in the legislative scheme with which the Court will shortly deal. For reasons best known to the parties and possibly the Committee, the position, formally approved, into which the plaintiff was appointed in October 2019 and the position from which the plaintiff purported to appeal were not before the Court at the time that the hearing commenced. Nor, it seems, were they before the Committee, when it made its decision.
During the course of the proceedings before the Court, the Court drew the attention of the parties to the absence of the formal authorisation for the position and granted the defendant liberty to provide that material after the conclusion of the hearing and each party was given the opportunity to address that material, if the party so desired, in writing. Each party took advantage of that opportunity.
For the record, the material produced as a consequence of that leave, which consists of a Health Briefing Note for Chief Executive, dated 18 November 2019; Visiting Medical Officer - Vascular Surgery (REQ141588) Position Description; Position Structure; formal Position Description; and Advertising Content shall be admitted into evidence and marked Exhibit 2. No original or additional material was tendered in relation to the three-month appointment approval, apart from a reference in Exhibit B.

Legislation

As is or may be obvious from the foregoing, the issue between the parties is whether the appointment which was denied to the plaintiff for the longer-term position was or would have been a "re-appointment" and, as such, subject to a right of appeal, which was denied by the decision of the Committee. It is necessary to deal with the legislation and, to some extent, the regulatory framework that governs appointments as a VMO.
The scheme of the process for appointment and appeal is governed by the provisions of the Act. Further regulation of the circumstances surrounding the appointment and appeal may depend upon an interpretation of the Health Services Regulation 2018 (NSW) (hereinafter "the Regulations").
The legislation must be read as a whole and construed so as to give effect to the purpose of the legislature and to harmonious goals. Later in these reasons, I will refer to the Second Reading Speech introducing some of the more relevant provisions. Before doing so, it is appropriate to recite some of the provisions of the Act. "76 Who is a visiting practitioner? A visiting practitioner is a medical practitioner or dentist who is appointed by a public health organisation (otherwise than as an employee) to practise as a medical practitioner or dentist in accordance with the conditions of appointment at any of its public hospitals or health institutions, or in relation to any health service it provides, specified in the appointment." "77 What are the kinds of visiting practitioners? The kinds of visiting practitioners are - (a) visiting practitioners appointed under a service contract (whether as visiting medical officers or honorary medical officers), and (b) visiting practitioners appointed otherwise than under a service contract." "78 Who is a visiting medical officer? A visiting medical officer is a medical practitioner appointed under a service contract (whether the practitioner or his or her practice company is a party to the contract) to provide services as a visiting practitioner for monetary remuneration for or on behalf of the public health organisation concerned." "80 What is a service contract? (1) A service contract is an agreement between - (a) a public health organisation and a medical practitioner under which the practitioner is appointed as a visiting practitioner to provide to or on behalf of the public health organisation the medical services that are specified in the agreement, or (b) a public health organisation and a practice company under which - (i) the medical practitioner who conducts his or her practice by means of the company is appointed as a visiting practitioner, and (ii) the company agrees to provide to or on behalf of the public health organisation the medical services, to be performed by the medical practitioner (as a visiting practitioner), that are specified in the agreement. (2) Any contract, agreement or other arrangement for the supply of medical services that is entered into as a result of a tendering process is not a service contract." "105 Public health organisation to notify visiting practitioners of certain decisions (1) If a public health organisation - (a) reduces any clinical privileges of a person appointed as a visiting practitioner that have previously been granted, or (b) does not re-appoint a person as a visiting practitioner, or (c) suspends or terminates the appointment of a person as a visiting practitioner, it must give notice in writing to the person of its decision (and the reasons for the decision) within 14 days of the date of the making of the decision. (2) In this Part, clinical privileges means the kind of clinical work (subject to any restrictions) that the public health organisation determines the visiting practitioner is to be allowed to perform at any of its hospitals." "106 Right of appeal to Minister (1) A person who is dissatisfied with a decision of a public health organisation referred to in s 105(1) concerning the person may appeal to the Minister against that decision. (2) However, a person cannot appeal to the Minister in relation to any of the following decisions - (a) a decision by a public health organisation not to re-appoint the person as a visiting practitioner if the organisation has ceased to offer appointments of the kind to which the person seeks re-appointment, (b) a decision by a public health organisation reducing the clinical privileges of a person if the decision is based on grounds other than the lack of professional competence of the person, (c) a decision by a public health organisation not to re-appoint a visiting practitioner (or a decision to terminate the appointment of a visiting practitioner) if - (i) the decision is based on the fact that the practitioner has been convicted of a serious sex or violence offence in respect of a minor, and (ii) the offence committed involves sexual activity or sexual touching or a sexual act with, or in relation to the minor, (d) a decision by a public health organisation not to re-appoint a visiting practitioner (or a decision to terminate the appointment of a visiting practitioner) if the decision is based on the fact that the practitioner has been convicted of a serious sex or violence offence in respect of a patient or client of the practitioner that is committed during the course of his or her practice as a medical practitioner or dentist (whether as a visiting practitioner or otherwise). (3) For the purposes of this section, a failure of a public health organisation to re-appoint a person as a visiting practitioner on or before his or her appointment expires is taken to be a decision not to re-appoint the person." "108 Constitution of Committee of Review (1) On receipt of a notice under s 107, the Minister must appoint a Committee of Review to determine the appeal. (2) A Committee of Review is to be constituted by - (a) an Australian lawyer of at least 7 years standing (who is also to be appointed as the Chairperson of the Committee), and (b) if the appellant is a medical practitioner - 1 person nominated by the Association who is a medical practitioner, and (c) if the appellant is a dentist - 1 person nominated by the Australian Dental Association, New South Wales Branch who is a dentist, and (c1) a person appointed by the Minister who - (i) in the Minister's opinion, is conversant with the interests of patients as consumers of health services provided by the public health system, and (ii) is not, and has never been, a medical practitioner or a dentist, and (d) 1 other person appointed in accordance with subs (4). (3) A person must not be appointed under subs (2)(b) or (c) unless the Minister is satisfied that the person nominated is sufficiently experienced in the administration of health services within the public health system to warrant being appointed. (4) A person may be appointed under subs (2)(d) only if - (a) the Minister is satisfied that the person appointed is sufficiently experienced in the administration of health services within the public health system to warrant being appointed, and (b) if the decision being appealed relates to a lack of professional standards or competence - the person appointed is a medical practitioner (if the appellant is a medical practitioner) or a dentist (if the appellant is a dentist). (5) If the Association or the Australian Dental Association, New South Wales Branch fails to nominate a person for appointment to the Committee within such time as may be notified by the Minister, the Minister may nominate a person who is eligible to be nominated by either Association under subs (2). (6) A decision of the Minister as to whether a Committee should be constituted as provided by subs (4) is final." "112 Determination of Appeal (1) Subject to this Part and the regulations, a Committee must determine the appeal and may make such orders with respect to the matter being appealed as the Committee considers proper. (1A) Following its determination of an appeal, if a Committee considers on reasonable grounds that - (a) serious concerns exist in relation to the performance or competence of the appellant, or (b) the appellant has engaged in conduct that may constitute professional misconduct or unsatisfactory professional conduct under the Health Practitioner Regulation National Law (NSW), or (c) the appellant may have an impairment under the Health Practitioner Regulation National Law (NSW), the Chairperson of the Committee may refer the matter to the Medical Council of New South Wales (in the case of a medical practitioner) or the Dental Council of New South Wales (in the case of a dentist) to be dealt with as a complaint under Part 8 of the Health Practitioner Regulation National Law (NSW). (2) If a public health organisation refused to re-appoint the appellant because it had appointed persons to all its available relevant positions that it considered to be better applicants, the Committee cannot order the re-appointment of the appellant unless it specifies in the order which one of those other practitioners' appointments is to be made available to the appellant. (3) The Chairperson of the Committee is to notify the Minister in writing of any order of the Committee made under this section. (4) In this section - relevant position means any position as a visiting practitioner of the public health organisation that is of the kind to which the appellant seeks re-appointment."
Within the Regulations, the following provisions are said to be relevant: "5 Applications for appointment as visiting practitioners (1) A public health organisation that decides to make available an appointment as a visiting practitioner must advertise the availability of the appointment in at least one of the following-- (a) a newspaper circulating generally in New South Wales, (b) an employment website affiliated with such a newspaper, Note - The employment website www.adzuna.com.au is affiliated with the Sydney Morning Herald and the employment website www.careerone.com.au is affiliated with The Daily Telegraph. (c) the NSW Health website used for the purpose of advertising employment positions in the NSW Health service. Note - The current NSW Health jobs website address is https://nswhealth.erecruit.com.au. The public health organisation may, in addition, advertise the availability in other ways. (2) An application for appointment as a visiting practitioner is to be made in writing to the public health organisation concerned and is to include - (a) a statement setting out, in a manner that satisfies the public health organisation, the clinical privileges sought by the applicant, and (b) an authority for the medical and dental appointments advisory Committee of the public health organisation to obtain information as to the applicant's past performance as a medical practitioner or dentist, as the case may be. (3) On receipt of the application, the public health organisation is to refer the application to the advisory Committee for advice. (4) Subclauses (1)-(3) do not apply - (a) to an appointment as a visiting practitioner that is to be held as part of the duties of a person who is to be or has been appointed to a teaching position at a tertiary institution, or (b) to an appointment as a visiting practitioner that is to be held by a person for a period of not more than 6 months, or (c) to any appointment as a visiting practitioner, to the extent that the Health Secretary determines that the provisions of those subclauses are not to apply. (5) A determination under subclause (4)(c) - (a) may be made in respect of a particular appointment or in respect of appointments of any specified kind or description, and (b) must be made in writing." "6 Appointment and conditions to be in written agreement (1) A person is to be appointed as a visiting practitioner to a public health organisation by written agreement between the person and the public health organisation. (2) The written agreement must specify the conditions to which the appointment is subject, including the clinical privileges of the visiting practitioner. (3) However, the written agreement does not need to include any conditions prescribed by or under the Act." "7 Term of appointment (1) The period for which a person may be appointed as a visiting practitioner is such period (not exceeding 5 years) as the public health organisation determines. (2) A person is, if otherwise qualified, eligible for re-appointment from time to time. (3) Despite subclause (1), a person may be appointed as a visiting practitioner for the duration of the person's appointment to a teaching position at a tertiary institution (or for such lesser period as the public health organisation may determine) if the public health organisation has first obtained the advice of the medical and dental appointments advisory Committee about the length of the appointment. (4) Despite subclause (1), a person may be appointed as a visiting practitioner for a period exceeding 5 years, but not exceeding 10 years, if the Health Secretary, in the particular circumstances of the case, approves the additional period of appointment."
Over and above the foregoing provisions of the Act and Regulations, the material before the Court, and before the Committee, included a Policy Directive [5] which deals with the appointment of visiting practitioners within the public health system. Part 8 of the Policy Directive deals with temporary appointments of less than six months.
Clause 8.1 of the Policy Directive deals with temporary appointments not exceeding one week and is, necessarily, not directly relevant to either the position held by the plaintiff or the position for which he applied. Clause 8.2 deals with a position of a duration of over one week but less than three months. Relevantly, it is in the following terms: "For any temporary appointment beyond one week, but less than three months with an extension for one further single three-month period is available, critical actions 1.1 to 1.14 of the Critical Actions Compliance Declaration (Appendix 1) must be completed, and signed by the Chief Executive authorised decision maker."
Appendix 1 - Critical Actions Compliance Declaration deals, in clauses 1.1 - 1.14, with the information and decision-making necessary for the purposes of such an appointment. Beyond clause 1.14 in Appendix 1 are clauses 1.15 - 1.17 which require all members of the selection panel to have access to the entire written application, CV and supporting documentation of each applicant under consideration; for specialist positions, the selection panel must include a medical practitioner from the specialty; and the convener of the selection panel has completed recruitment and selection training.
Nevertheless, clauses 1.1 - 1.14 require a Working With Children Check; verification of registration; professional indemnity cover; an internal check with the NSW Health Internal Service Check Register; two reference checks, or one if the appointment is less than three months; a specialist in the relevant specialty being involved in determining the clinical privileges/scope of practice where appointment is not for more than three months; confirmation that the applicant is eligible to practice as a medical specialist; written details of all other current medical appointments and a signed standard consent form with employment related checks; original documentation or original certified copy of any additional qualifications over and above those necessary to gain registration, memberships, certificates etc. used to support the claim for the position; verbal references were checked and responses to the specified questions recorded in writing; written references to be directly confirmed and written responses addressed to specified questions; and information sought from the Health Care Complaints Commission and/or Australian Medical/Dental Board.
The Policy Directive deals, at Pt 15 with the terms of appointment for visiting practitioners and notes that visiting practitioners can be appointed or re-appointed for any specified period not exceeding five years, as may be determined by the public health organisation. Clause 15.2 notes that visiting practitioners are eligible for, but not entitled to, re-appointment and refers to Section 3.1.2 of the Policy Directive. Clause 15.2 notes that it is not obligatory to interview visiting practitioners who are not being re-appointed without advertising. It provides in the following terms: "Persons applying for advertised vacancies may be new applicants or existing appointees, and the application process is the same in both cases. Visiting practitioners must be informed that past performance will be taken into account, and be asked to complete the required authorities for these checks to occur. …. Where existing visiting practitioners are being re-appointed, the critical actions at Appendix 1 must be completed, with the following proviso: Where the Medical and Dental Appointments Advisory Committee (MDAAC) and / or any of its subcommittees considers that it is not necessary to repeat a particular critical action(s) during the reappointment process, and the action is not currently required in the NSW Health Policy PD2016_047, …. In these circumstances, the resulting recommendation to the Chief Executive or authorised decision maker must identify any critical actions not completed and the reasons. On re-appointment, the Visiting Practitioner must have a Working with Children Check clearance that has been verified with the Office of the Children's Guardian…"
The foregoing reference to Section 3.1.2 is a reference to that part of the Policy Directive that deals with advertising requirements. It is appropriate to recite the provisions of 3.1.1 and 3.1.2, which are in the following terms: "3.1.1 Short-term Temporary Appointments Temporary appointments of visiting practitioners can be made without the need to advertise the vacancy where the appointment is for a period not exceeding three months, which can be extended for one further single three-month period. 3.1.2 Reappointment For VMOs and VDOs only, advertising of positions is not required in circumstances where: The role and responsibilities for the VMO / VDO remains largely unchanged since their original appointment, and There has been a Level 2 review of the VMO / VDO in the penultimate year of the term of their appointment, and The performance has been found to be such as to warrant renewal without advertising, and The public health organisation has decided that it is appropriate to appoint a specialist VMO / VDO with an existing appointment; for a further term …."

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Legislation Cited (5)

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