The Medical Council of NSW (the applicant) seeks an order that an appeal remitted to the Tribunal to be re-heard following a successful appeal to the NSW Court of Appeal be dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 or, in the alternative, that it be terminated pursuant to Schedule 5D clause 12(1)(a)(ii) and (1)(b) of the Health Practitioner Regulation National Law (NSW) (the "National Law").
The matter has a long and somewhat complicated history and it is helpful to set out some detail of that history to provide context for the disposition of the matter.
Dr Ghosh was registered as a medical practitioner in 1990 in Western Australia and in NSW in 1992. She practised as a General Practitioner. In 2011 she became a Fellow of the Royal Australian College of General Practitioners. The respondent remained registered as a Medical Practitioner until 1 November 2018 when she failed to renew her registration. She is presently not registered.
On 12 December 2017, a hearing was convened pursuant to s 150 of the National Law to consider concerns about the respondent's practise of medicine and her mental health. The panel concluded that the respondent's registration should be suspended until her mental health was assessed because there was a strong risk that she may fail to treat a patient with appropriate clinical care. The panel concluded that her registration should be suspended finding that no condition imposed on her registration would minimise the identified risk.
The respondent sought a review of that decision pursuant to s 150A of the National Law. On that review on 12 April 2018, the panel considered whether there were sufficient changes to the respondent's circumstances to justify setting aside or varying the decision to suspend her registration. Although the panel found no relevant change of circumstances, it substituted the suspension on her registration with a condition on the respondent's registration that she not practise medicine.
The respondent appealed to the NSW Civil and Administrative Tribunal (the "Tribunal") from both decisions. On 20 November 2018, the Tribunal dismissed the respondent's appeal and confirmed the condition on her registration that she not practise medicine.
An appeal to the NSW Court of Appeal from the Tribunal's decision was successful and on 26 June 2020, the Court set aside the decision of the Tribunal and remitted the respondent's appeal against the s150 and 150A determinations to be heard by a differently constituted Tribunal. In coming to that decision, the Court of Appeal identified errors by the Tribunal in assessing and preferring the evidence of the experts; in making a finding about the honesty of the respondent which was not reasonable and in failing to identify whether, on the material before it, allowing the respondent to practise with or without conditions attached to her registration involved an unacceptable risk to the health and safety to the public or to the public interest.
The remitted appeal has not been heard.
On 12 May 2021, the Health Care Complaints Commission (the HCCC) commenced proceedings about the respondent's practice of medicine. Eight complaints were raised each supported by particulars of the alleged conduct. The complaints alleged that the respondent inappropriately prescribed penicillin for a child although she had been told that the child was allergic to penicillin; inappropriately refused to vaccinate a pregnant patient for whooping cough, made inappropriate remarks about the vaccine and failed to carry out antenatal checks. The HCCC further complained that the respondent treated a person who was closely related to her, inappropriately prescribed medication for that person, failed to obtain an independent general practitioner for that person, charged for services in treating that person and failed to keep any record of her treatment of this person. It was also alleged that the respondent failed to produce documents relating to her care of this patient and failed to provide a reasonable excuse for not producing the documents. The HCCC alleged that these complaints amounted to unsatisfactory professional conduct and also taken together or individually amounted to professional misconduct. A separate complaint alleged that the respondent is impaired and finally complained that the respondent lacked the mental capacity to practise as a medical practitioner.
At the time this complaint was heard by a Tribunal, May 2021, the respondent was no longer registered as a medical practitioner. The Tribunal concluded pursuant to s 149C(1)(a) and (b) and s 149C(4)(a) that if the respondent were still registered, the Tribunal would have cancelled her registration. The Tribunal further ordered that she cannot seek a review of the Tribunal's orders for a period of three years from the date of the orders, 13 October 2021.
The respondent's appeal from those orders to the NSW Court of Appeal was dismissed on 11 November 2022.
Returning then to the remitted appeal, at the conclusion of the HCCC matter, directions were made in the Tribunal in relation to the respondent's appeal and at that point the applicant filed the present application for dismissal of the appeal which was set down for hearing on 12 October 2023.
When the matter commenced there was no appearance by the respondent.
The hearing of the application had twice before been listed for hearing and on both occasions had been adjourned at the request of the respondent. On 4 August 2023, at a hearing at which the respondent attended, the application was listed for hearing on 12 October 2023. Two letters confirming the listing date were sent to the respondent on 7 August 2023, one to her email address and one to a postal address. Counsel for the applicant indicated that the email address for the respondent was, so far as he knew, her present email address.
In the circumstances, I concluded that the matter should proceed. No additional oral submissions were made by the applicant in support of the application.
On 16 October 2023, the respondent wrote to the Tribunal Registry explaining that she understood the hearing was listed for 20 October and seeking leave to file further submissions in relation to the application. A further timetable for the provision of submissions was agreed and the respondent and the applicant made further submissions on the issue.
[2]
The application to dismiss or terminate the appeal
In seeking the dismissal of the respondent's appeal, the applicant relies on s55(1)(b) of the Civil and Administrative Tribunal Act 2013 and also on Clause 12(1)(a)(ii) to Schedule 5D of the Health Practitioner Regulation National Law (NSW). The applicant also relies on Schedule 5D clause 12(1)(b) of the Health Practitioner Regulation National Law (NSW) to have the appeals terminated.
Section 55 of the Civil and Administrative Tribunal Act provides that the Tribunal may dismiss any proceedings if they are frivolous, vexatious, misconceived or lacking in substance.
Clause 12(1)(a)(ii) of Schedule 5D says:
(1) A Committee or the Tribunal may decide not to conduct an inquiry, or at any time terminate an inquiry or appeal if -
(a) any of the following circumstances apply -
…
(ii) the person about whom the complaint is made ceases to be a registered health practitioner …
The applicant contends that, the respondent, not being a registered medical practitioner, any appeal against conditions imposed on her registration in the past, even if wholly successful would be of no effect, rendering the proceedings lacking in substance.
In the respondent's first filed submissions in relation to the application, she sought orders that the appeal proceed and that the conditions imposed on her registration in April 2018, namely that she not practise medicine, be set aside.
The respondent also sought an order pursuant to section 9 of the Civil and Administrative Tribunal Regulation 2022 varying the three year cancellation period imposed on 13 October 2021. This claim may be disposed of shortly. The Tribunal proceedings which resulted in the order that the respondent not seek re-registration for three years was made in separate proceedings from the remitted appeal and against which the respondent's appeal was dismissed. Those orders are not before the Tribunal.
Section 9 permits a Tribunal to vary or set aside a decision it has made if:
(a) all of the parties to the proceedings have consented to the making of the order to set aside or vary the decision, or
(b) the decision was made in the absence of a party and the Tribunal is satisfied that the party's absence has resulted in the party's case not being adequately put to the Tribunal.
Neither of those conditions apply here.
Clause 12(1)(a)(ii) and 12(1)(b) of Schedule 5D of the National Law provides that the Tribunal may terminate an appeal if the person about whom the complaint is made ceases to be a registered health practitioner and if the Tribunal is of the opinion it is not in the public interest for the appeal to continue.
It is important to be mindful that to summarily dismiss proceedings is a serious step here having the effect of depriving the respondent of the ability to prosecute her appeal against the imposition of the condition on her registration that she not practise medicine.
The respondent's submissions filed after the hearing contend that if her appeals from the Panel decisions are successful before a Tribunal, it would result in the reinstatement of her registration as a medical practitioner. She extrapolated in that event, the Medical Council would convene a s150 panel to re-impose a condition that she not practise medicine and thus create a duplication of proceedings. The respondent argued that the proceedings conducted by the HCCC in relation to the May 2021 complaint and the panel decisions made pursuant to s150 and 150A were based on the same complaint and represented an abuse of proceedings.
Section 150 provides a means for urgent consideration to be given when circumstances arise in which there are concerns protection of the health or safety of persons or otherwise in the public interest. As I have indicated, the decision of the s150 panel arose because of concerns for the respondent's mental health and that her registration be suspended until she had been assessed. The s150A review reconsidered the issues and substituted a condition that she not practise medicine.
The complaint filed by the HCCC in May 2021 was of an entirely different nature and which, as I have indicated, concerned the respondent's practice of medicine together with a complaint that she is impaired and not competent to practise medicine.
There is no substance in the assertion that proceedings would be duplicated or that would amount to an abuse of process based on what the Medical Council might or might not do is speculation.
The respondent's argument proceeds on a misapprehension, namely that if her appeal against the determination of the s150 and 150A panels was successful, her right to practise medicine would be reinstated. It would not.
The respondent's submissions argue that there is a public interest in the proceedings continuing and in support asserts that s150 proceedings are unconstitutional and are corrupt.
Finally the respondent argues that there is a genuine issue to be tried and thus the appeals should not be dismissed.
[3]
Consideration
First and importantly, the respondent is no longer registered. The imposition of the "not to practise" condition was overtaken by the Tribunal decision of 13 October 2021 in which the Tribunal decided that if the respondent were still registered it would cancel her registration and that she not be permitted to seek re-registration for three years. Even if she was successful in appealing against the conditions imposed on her registration by the s150 and s150A panels, it would be of no effect.
One of the important rationales for proceedings brought under the National Law is to protect 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 that "…restrictions on the practice of a health professional are to be imposed only if it is necessary to ensure health services are provided safely and are of an appropriate quality" (Section 3(2)(a) and (3)(c)). Where, as here, the respondent is no longer registered, there is no work for the protective aspects of the National Law to do.
Secondly, it is not in the public interest to permit the appeal to continue where there is no utility in it.
Section 159C of the National Law sets out the powers of a Tribunal hearing an appeal from a decision of the Medical Council.
(1) On an appeal against a decision of a Council, the Tribunal may by order--
(a) confirm the decision; or
(b) set aside the decision; or
(c) set aside the decision and make a new decision (being a decision that the Council could have made).
There is no order that the Tribunal could make if the appeal proceeded while the respondent is no longer a registered health practitioner.
The appeal is therefore in my view lacking in substance and clearly untenable and should be dismissed pursuant to s 55(1)(b).
Equally too, the appeal should be terminated pursuant to Clause 12(1)(a)(ii) and further Clause 12(1)(b) because it is not in the public interest for the appeal to continue in circumstances and would, in my view represent a pointless expenditure of public funds.
The remitted appeal being proceedings 2018/00389585 be dismissed.
[4]
Costs
The applicant submitted that the appropriate costs order in relation to the proceedings is for each party pay their own costs. However, in relation to the application to dismiss the appeal, it was argued that the respondent should pay the applicant's costs.
The applicant's solicitor swore an affidavit in support of the application in which she deposed to steps taken to secure the consent of the respondent to the dismissing of the appeal. In a letter of 11 February 2021 sent to the solicitors then acting for the respondent, the applicant's solicitor set out the legal obstacles to the prosecution of the appeal and sought their consent to the appeal being dismissed with each party to pay their own costs. No response was received. Again, on 17 January 2022, the applicant's solicitor wrote to the respondent's then solicitors making the same offer. By telephone call, the respondent's solicitors rejected the offer, saying that the question of the remitted appeal should be delayed until the respondent's appeal (presumable against the 13 October 2021 orders) had been dealt with by the Court of Appeal. Once that appeal was dismissed, on 25 January 2023, the solicitor for the applicant again wrote to the respondent's solicitor and remade the offer that the appeal be dismissed and each party pay their own costs. No response was received.
It is against this correspondence that the applicant seeks its costs of the dismissal application.
The respondent did not address the issue of the applicant's costs in her submissions on the application, rather the respondent seeks an order that the applicant pay the entirety of her costs from 2020.
There is considerable force in the application for costs. The offer was made to the respondent at a time when she was legally represented and the offer rejected. The offer was a reasonable one in all of the circumstances and in rejecting it, the respondent put herself in jeopardy as to costs. She should pay the applicant's costs of the application to dismiss the appeal otherwise each party should pay their own costs.
[5]
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
[6]
Amendments
08 December 2023 - Coversheet - Case number corrected.
14 December 2023 - Coversheet - Order 2 amended to reflect outcome within the decision.
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: 14 December 2023