defendant. 1. Time for filing the Summons extended to 30 November 2018; 2. Summons dismissed; 3. Plaintiff to pay defendant's costs of and incidental to the proceedings.
Key principles
A complainant to the Health Care Complaints Commission is not, in the Commission's preliminary assessment function of deciding whether to investigate a complaint under s 20(1) of...
The Commission lawfully declined to investigate where neither the Medical Council of New South Wales formed the opinion that the complaint should be investigated under s...
Consultation with the Medical Council of New South Wales, as required by the Act (s 12(1)/s 3A), does not give rise to apprehended bias where the practitioner complained about is...
Disagreement with, or alleged error in, a medico-legal expert's opinion, including a diagnosis, is principally a merits matter; absent engagement of mandatory statutory criteria...
Issues before the court
Whether the Commission denied procedural fairness by failing to provide the complainant with the practitioner's response and opportunity to reply...
Plain English Summary
Hastwell complained to the Health Care Complaints Commission that a psychiatrist's medico-legal report wrongly diagnosed him with delusional disorder. The Commission, after consulting the Medical Council and receiving the practitioner's response, decided not to investigate; a de novo internal review confirmed that decision. The Supreme Court refused judicial review. The Court held that the Commission's assessment power under the Health Care Complaints Act required investigation only where the Council recommended it or the Commission was satisfied statutory criteria were met; procedural fairness protections primarily attach to subjects of adverse findings (practitioners), not complainants, and any procedural defect in the Primary Decision was cured by the de novo Review Decision. Consultation with the Medical Council did not create bias. Disagreement with a medico-legal opinion is a merits dispute and does not, without more, amount to jurisdictional error.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,974 words · generated 29/06/2026
Whether the Commission acted ultra vires or failed to identify the correct issue (that the complaint concerned a medico-legal opinion rather than...
Whether consultation with the Medical Council and the practitioner's membership of the Council gave rise to apprehended bias.
Whether the Commission failed to consider mandatory or otherwise relevant considerations (Peko-Wallsend principle).
Cited legislation
5 cited instruments linked from this judgment.
What happened
Haydyn Hastwell engaged a psychiatrist to prepare a medico-legal report for Federal Court proceedings alleging sex discrimination and harassment by a former employer. The psychiatrist's report concluded the plaintiff suffered from delusional disorder, a diagnosis that the plaintiff strongly disputed. The plaintiff complained to the Health Care Complaints Commission (the Commission) alleging the psychiatrist had breached medical ethics, omitted relevant facts, expressed opinions beyond expertise, misrepresented facts and used irrelevant information.
The Commission sent the complaint to the psychiatrist, who provided a response but did not consent to its disclosure to the complainant. The Commission's Complaint Assessment Team issued a Primary Decision (28 November 2016) which summarised the practitioner's response (rather than releasing the full response) and decided not to investigate the complaint. The plaintiff sought a de novo review; the Review Decision (20 February 2017), signed by the Commissioner, reiterated that no breaches of ethics or regulation were identified and confirmed no further action.
Hastwell commenced judicial review in the Supreme Court of New South Wales. He advanced multiple grounds: denial of procedural fairness by non-disclosure of the practitioner's response; failure to genuinely consider merits; ultra vires error; failure to take into account relevant considerations; apprehended bias because the practitioner was a member of the Medical Council of NSW and the Commission consulted the Council; failure to follow medical/ethical guidelines; legal unreasonableness, manifest illogicality and irrationality; and lack of evidentiary basis for the diagnosis of delusional disorder.
Rothman J heard the matter, granted an extension of time to file the Summons, but dismissed the application for judicial review and ordered the plaintiff to pay the defendant's costs.
Why the court decided this way
The decision turns on statutory analysis of the Health Care Complaints Act 1993 (NSW) and the scope of judicial review in the Court's supervisory role.
Statutory function and thresholds for investigation. The Commission's assessment function under s 20(1) is preliminary: decide whether a complaint should be investigated, referred, conciliated, or not entertained. Section 23 creates mandatory triggers for investigation: (a) the appropriate professional council (here, the Medical Council of NSW) is of the opinion the complaint should be investigated, or (b) following assessment the Commission is satisfied (or it appears to the Commission) that specified statutory criteria are met (e.g. significant public health/safety issue; grounds for disciplinary action; gross negligence). Rothman J emphasised that those are threshold, appearance-based conditions: the Commission must investigate only if the Council opines it should or if s 23(1)(b) appears to be satisfied. Absent those appearances or opinions, the Commission may lawfully decide not to investigate.
Procedural fairness limits and cure by review. The Court explained that the Act prescribes procedural fairness protections for persons against whom adverse findings could be made (ss 40 and 43); those protections apply to practitioners and organisations who may face adverse recommendations following investigation. A complainant, by contrast, is not the subject of adverse findings by the Commission in the exercise of its investigatory functions and the statutory scheme discloses a legislative intention to protect the practitioner as the primary object of procedural fairness. Crucially, the Review Decision was conducted de novo and the Primary Decision had summarised the practitioner's response, so any denial of procedural fairness in the Primary Decision (non-disclosure of the full practitioner response) was remedied by the review: the complainant had the chance to reply to the matters summarised, and the reviewer had the full powers of the primary decision-maker. Therefore no jurisdictional error arose from procedural fairness complaints.
Apprehended bias and rule of necessity. The plaintiff alleged bias arising from the practitioner's membership of the Medical Council, which the Commission consulted. Rothman J held the Act requires consultation with the Council and the statutory process includes safeguards to exclude conflicted individuals. The rule of necessity supports the position that compliance with a statutory consultative system does not, in itself, create disqualifying bias especially if the individual complained of was excluded from the decision process.
Merits versus jurisdiction. Many grounds alleged defects in the content of the medico-legal report (diagnosis, omissions, ethical breaches). The Court treated those as merits issues: disagreement with an expert opinion does not, by itself, make the decision-maker's refusal to investigate unlawful. An erroneous or contestable diagnosis is a disagreement going to the weight and admissibility of evidence in litigation, not a mandatory statutory trigger for Commission investigation. Therefore, absent misapplication or omission of mandatory statutory considerations, the Commission's decision represented an exercise of its statutory discretion.
Rationality and illegality. The Court rejected contentions that the Commission's reasoning was manifestly illogical or irrational. The Commission had explained its reasoning (summarising the practitioner's response and concluding insufficient evidence of professional failure), and the decision fell within legitimate bounds of administrative assessment under the Act.
These strands together render the judicial review application untenable: no procedural defect unremedied, no failure to consider mandatory factors, no bias, and no jurisdictional error.
Before and after state of the law
Before this decision the law was well-settled that administrative decision-makers must observe procedural fairness where required, but the content of procedural fairness varies with context; the High Court has allowed a flexible approach to implied procedural fairness depending on statutory power and potential for adverse consequences (see Annetts v McCann; CPCF v Minister). It was also established that judicial review remedies generally require jurisdictional error or error of law (certiorari, mandamus) except that declarations can be issued under s 75.
Hastwell confirms and applies those principles in the health-complaints context:
It reinforces that the Health Care Complaints Act allocates procedural protections primarily to subjects of adverse findings (practitioners), not complainants at the assessment stage.
It clarifies that a de novo internal review with full powers can cure an initial omission of procedural fairness.
It emphasises that statutory investigatory thresholds (s 23) are appearance/opinion based; unless those are met the Commission may decline to investigate without error.
It reiterates that disagreements with expert opinions typically raise merits issues, not jurisdictional defects, unless mandatory statutory considerations are neglected.
Thus the decision cements the boundary between merits review and jurisdictional review in disciplinary/complaints processes governing health practitioners.
Key passages with plain-English translation
Court's statement on the Commission's statutory decision-making: "In those circumstances, it is open to the Commission to take the view that the complaint should not be investigated, pursuant to the terms of s 20(1) of the Act." Plain English: The law allows the Commission to decide not to investigate unless the Council recommends it or the Commission sees statutory grounds to investigate.
On procedural fairness cure by review: "Whatever may have been the 'unfairness' occasioned by the primary decision-maker not summarising those matters raised by the medical practitioner... any such 'unfairness' was overcome by the capacity of the plaintiff to reply to those issues for the purpose of the Review." Plain English: If the first decision didn't give you full procedural rights, the de novo review fixed that because you got to respond and the reviewer reconsidered everything.
On expert diagnosis and Commission competence: "If a psychiatrist, even wrongly, diagnoses a patient ... the psychiatrist is entitled so to do. The psychiatrist may be wrong. But any error... is not one that will affect the safety of the public ..." Plain English: Even if a psychiatrist's opinion is mistaken, that alone does not mean the Commission must investigate; such errors are primarily matters for the courts or for professional disagreement, not automatic bases for administrative intervention.
On bias and statutory consultation: Court notes consultation with the Medical Council is mandated and procedures exclude conflicted individuals. Plain English: The fact the Commission talked to the Medical Council (and the doctor was a member) does not automatically mean the process was biased; the law requires the Commission to consult the Council, and the Council's processes avoid using conflicted persons.
What fact patterns trigger this precedent
This judgment is directly relevant where:
A complainant to the Health Care Complaints Commission alleges professional misconduct arising from a medico-legal report, and the Commission elects not to investigate.
A complainant alleges denial of procedural fairness because the subject practitioner's response was provided to the Commission but not released in full to the complainant.
A complainant alleges apprehended bias because the practitioner is linked to the professional council consulted by the Commission.
A complainant challenges the Commission's refusal to investigate on grounds that the expert opinion was allegedly erroneous or unethical.
Key features: preliminary assessment stage under s 20(1); practitioner response withheld by consent; internal de novo review available; no Medical Council instruction to investigate; disputed expert diagnosis (merits dispute).
If these elements are present, Hastwell indicates courts will be cautious to recharacterise merits complaints as jurisdictional errors and will respect the statutory framework that affords procedural protections primarily to practitioners.
How later courts have treated it
As at the date of this judgment, Hastwell itself cites established authorities (Annetts, CPCF, Ainsworth, Peko-Wallsend, Dranichnikov, Swift, Makita). The decision applies orthodox principles: procedural fairness is context-specific, mandatory statutory considerations are key to jurisdictional error, and internal de novo reviews can remedy procedural defects. Later courts considering similar fact patterns should follow the approach taken: examine the statute's allocation of protective procedural rights, identify mandatory triggers for investigation, assess whether any procedural omission was cured by process, and avoid substituting merits review for supervisory review.
Practitioners should expect courts to decline to intervene where the statutory consultative and review mechanisms have been followed and where the complaint essentially challenges an expert opinion rather than asserting a statutory trigger for investigation.
Still-open questions
Extent of disclosure obligations pre-assessment. Hastwell treats non-disclosure of the practitioner's response as acceptable where the practitioner declines consent and the Commission summarises the response. The case leaves unresolved the precise contours of when a Commission must disclose a practitioner's response during assessment (for example, where the summary might omit material points). A future case with a more flagrant omission in the summary might compel finer-grained guidance.
When does an expert opinion error convert into a statutory ground? Hastwell characterises misdiagnosis as a merits issue. But where misdiagnosis involves clear departures from professional standards or evidence of systemic danger to public health, the line between merits and mandatory considerations (ss 23 triggers) could be contested. The decision leaves open detailed criteria for when diagnostic error spills into 'grounds for disciplinary action' or 'gross negligence' under s 23(1)(b).
Interaction of privilege and investigatory needs. The judgment notes privilege over medico-legal reports and the complainant's solicitor controls waiver, but does not fully resolve how privilege should be handled when the Commission has investigatory powers requiring documentary material. Situations where privileged documents are centrally relevant to public safety might require further elaboration.
Scope of de novo review as a cure. Hastwell relies heavily on the fact the Review Decision was de novo and cured any procedural complaint. It remains an open question whether more limited reviews or administrative reviews with narrower powers would cure procedural defects in the same way.
Rule of necessity scope in statutory consultative regimes. The judgment applies the rule of necessity to avoid disqualification by reason of statutory consultation. Future cases may be required to delineate precise limits where consultation involves closer relationships between practitioners and council members, or where the council's composition creates stronger appearance-of-bias concerns.
Takeaway for practitioners: when advising clients who are complainants, distinguish clearly between merits complaints about expert evidence (which are likely not to attract Commission investigation absent statutory triggers) and allegations that clearly fall within s 23 statutory criteria; ensure document management (privilege waiver, additional evidence) is considered early; and where procedural fairness is in issue, seek to use the Commission's internal review process, a full de novo review is likely to neutralise earlier procedural complaints.
Catchwords
[1992] HCA 10
Annetts v McCann (1990) 70 CLR 587[1990] HCA 57
ASIC v Farley (2001) 51 NSWLR 494[2001] NSWSC 326
Calvin v Carr [1980] AC 574(1979) 1 NSWLR 1
Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352[2017] FCAFC 107.
CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514[2015] HCA 1.
Director-General, Department of Trade and Investment, Regional Infrastructure and Services v Lewis (2012) 301 ALR 420[2012] NSWCA 436
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088[2003] HCA 26
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705[2001] NSWCA 305
Peko-Wallsend Ltd v Minister for Aboriginal Affairs (1986) 162 CLR 24[1986] HCA 40
Sankey v Whitlam (1978) 142 CLR 1[1978] HCA 43
Sullivan v Department of Transport (1978) 20 ALR 323[1978] FCA 48
Swift v SAS Trustee Corporation (2010) 6 ASTLR 339[2010] NSWCA 182
The Honourable Daniel Thomas McVeigh v Willarra Pty Ltd (1984) 2 FCR 587[1984] FCA 421
Twist v Randwick Municipal Council (1976) 136 CLR 106
Judgment (14 paragraphs)
[1]
Judgment
HIS HONOUR: The plaintiff, Haydyn Hastwell, seeks judicial review of the decision of the Health Care Complaints Commission (hereinafter "the Commission") dated 20 February 2017. The Amended Summons for judicial review was filed 30 November 2018.
The grounds upon which such judicial review are sought are:
i. denial of procedural fairness in failing to allow the plaintiff to see or reply to the medical practitioner's response to his complaint;
ii. that the decision-makers have failed to give proper, genuine and realistic consideration to the merits of the case;
iii. acting ultra vires by failing to identify the correct issues;
iv. failure to take into account relevant considerations;
v. apprehended bias, based upon the medical practitioner's association with the Medical Council of New South Wales;
vi. failure to follow medical guidelines with respect to medical-legal report;
vii. failure to apply ethical guidelines and codes of practice;
viii. legal unreasonableness by forming the conclusions the decision-makers did, with all of the evidence before it and manifest unreasonableness;
ix. manifest illogicality and irrationality; and
x. no evidence for diagnosis to which the medical practitioner subscribed in his Report of 29 June 2016.
The Commission, the defendant in these proceedings, issued a decision by letter dated 20 February 2017 (hereinafter the "Review Decision"), as earlier stated, but the plaintiff also seeks judicial review of the first instance decision of the Commission (hereinafter the "Primary Decision") issued on 28 November 2016.
It is appropriate for the Court to recount some extracts of the two decisions sought to be reviewed. The Primary Decision was issued by Nada Fraser, a Complaint Assessment Team Leader with the Commission, but, it seems, another person, Ms Reitano, was involved in its drafting. In the document, the Commission referred to the concerns expressed about the medical practitioner and summarised the claim before it in the following terms:
"Your complaint included a detailed outline of your concerns … you stated that you saw [the medical practitioner] to obtain a medico-legal report for a claim against your former employer regarding sex discrimination. You felt that he breached medical ethics, standards and regulations in the conduct of the consultation and preparation of the report. You outlined concerns that [the medical practitioner]:
• Reached a diagnosis of 'delusion disorder', which is incorrect.
• Omitted critical facts which had been discussed at the consultation in his report.
• Expressed opinions outside his expertise as a psychiatrist.
• Misrepresented facts.
• Used irrelevant information in the report."
The Commission, in the Primary Decision, referred to the complaint being sent to the medical practitioner; that he submitted a response; but did not consent to a copy of his response being provided to the plaintiff.
Notwithstanding the lack of consent to the provision of the response to the plaintiff, the Commission, in the Primary Decision, summarised the effect of the response, which was:
That his report was provided at your request;
His report included his explanation of his diagnosis of delusional disorder;
He used his clinical judgement to determine the relevant facts in reaching his diagnosis;
He denied expressing opinions outside his expertise as a psychiatrist and stated that when assessing persons suffering from psychotic disorders a psychiatrist is required to determine whether persecutory themes could be based in reality;
He found the plaintiff's persecutory ideas unlikely to be based in reality; if no independent information supporting the allegations could be found, he considered a diagnosis of delusional disorder as the likely explanation; and
He denied misrepresenting any facts.
Ultimately, the nature of the complaints was referred to senior members of the Medical Council of NSW and following consideration of the plaintiff's complaint by the Commission and the Medical Council, it decided to dismiss the complaint and said:
• "Whilst I understand that you strongly disagree with [the medical practitioner's] diagnosis, it is open to any doctor to reach a diagnosis or opinion based upon their own investigations, analysis and clinical judgement. Whilst it is also open to a client or patient, or even another practitioner, to disagree with the doctor's opinion or diagnosis this does not, of itself, indicate a failure to correctly diagnose on the part of the doctor. It is also open to a medical practitioner to determine the relevant information to be taken into account in reaching their diagnosis. [The medical practitioner] provided a reasonable explanation for the diagnosis he reached, including an explanation of the information and factors he took into account, as well as his analysis of that information. The Commission and the Council did not identify any concerns with regard to this matter;
• No evidence that [the medical practitioner] acted outside the scope of his training as a psychiatrist was identified by the Commission or the Council;
• Whilst I understand that you feel that [the medical practitioner] did not listen to you and I appreciate that you feel dissatisfied with the outcome of your consultation with him, there was insufficient evidence found to demonstrate that [the medical practitioner's] conduct towards you was significantly below the standard reasonably expected for [sic] a doctor of an equivalent level of training or experience;
• The Commission has no authority to order a doctor to give a refund of their fee."
The letter informed the plaintiff that he could seek a review of the decision, which he did. The review occurred and the Review Decision was delivered, as already stated, on 20 February 2017.
The Review Decision recited the original complaint in terms similar to that recited by the primary decision-maker and also reiterated that the plaintiff was seeking reimbursement of the $750 that he apparently had paid for the Report. The Review summarised the application before it as "a review of the Commission's decision to take no further action" and summarised the plaintiff's submissions in the following way:
• "The Commission's assessment is inadequate as it has not dealt fairly or reasonably with the complaint. You said that the Commission has erred by failing to tell you exactly what it based its decision on and by not stating expressly what facts or assumptions the Commission relied on to form its decision. You also wanted to be given the opportunity to see [the medical practitioner's] response;
• The Commission has not dealt with your concerns with respect to the Medical Council's conflict of interest, given the suggestion that [the medical practitioner] has close ties to the Medical Council;
• You dispute that the diagnosis is satisfactory given that you do not meet any of the criteria for delusional disorder under the DSMV;
• The Commission has failed to address your concerns as to why [the medical practitioner] never once asked how you felt, focusing solely on why you thought the discrimination was occurring.
The Commission has reviewed all of the documentation and decision making processes and the assessment decision that that was communicated to you on 28 November 2016. The review findings are summarised below:
i. The report by [the medical practitioner] was provided at your solicitor's request. In his report [the medical practitioner] describes the consultation, provides a history, reviews a number of documents provided and addresses the specific questions asked by your solicitors. In doing so [the medical practitioner] outlines his reasons for his diagnosis and there are no identified breaches of medical ethics, standards and regulations in the conduct of the consultation or preparation of the report.
ii. Neither the Commission nor the Council can request or require [the medical practitioner] to change the content and conclusions in his report. These are his conclusions, made in accordance with his qualifications, training and experience as a clinician.
iii. When a healthcare provider requests that the Commission does not release a copy of their response to a complainant, as is the case here, the Commission complies with this request unless there is a compelling reason not to do so. In this case there is not a compelling case to act against [the medical practitioner's] request, but the Commission has conveyed the key elements of the response, as well as the Commission's reasoning in coming to the assessment decision;
iv. In respect of your concern of [sic] a conflict of interest in relation to [the medical practitioner], I acknowledge that [the medical practitioner] is a member of the Medical Council of NSW as a nominee for the Royal Australian & New Zealand College of Psychiatrists. However, the consultation processes and protocols that apply in assessing complaints exclude the involvement of any individual with an actual or perceived conflict of interest. In any event, members of the Council are not involved in assessment decisions. [The medical practitioner] therefore had no role, other than providing his response to the complaint, in this matter.
While I appreciate that you strongly disagree with aspects of the consultation with [the medical practitioner] and with opinions expressed by him in his report, this in itself is not sufficient to progress your complaint any further.
I understand that this matter has been distressing for you and that you remain extremely dissatisfied with [the medical practitioner]. I can assure you that the material in the original complaint and the review request has been very thoroughly reviewed and considered. I remain of the view that no further action is required by the Commission."
[2]
The jurisdiction of the Court
The plaintiff applies for "judicial review". The summons is in the form prescribed and complies, subject to time limits, with the terms of Part 59 of the Uniform Civil Procedure Rules 2005 (NSW) (hereinafter "UCPR"). Nevertheless, "judicial review" is not a grant of jurisdiction.
Judicial review is achieved by a number of different remedies and, in particular, remedies under ss 65, 66, 69, 69B, 70 and 75 of the Supreme Court Act 1970 (NSW). I have deliberately omitted the relief being orders in the nature of habeas corpus.
Section 23 of the Supreme Court Act continues the inherent jurisdiction that the Court was granted in the Third Charter of Justice for New South Wales, which came into effect in 1824 and was granted by King George IV in 1823. These are letters patent issued under Act 4 George IV c. 96 and granted to the Supreme Court all the jurisdiction of the Kings Bench, Common Pleas, Exchequer, Chancery and Probate courts and, with some exceptions, jurisdiction in respect of certain ecclesiastical matters. Nevertheless, the Court's jurisdiction is not one that extends to doing everything that is "fair"; it is confined to the grant of remedies in the exercise of judicial power.
Leaving aside for present purposes the remedies relating to bail and criminal proceedings, the major remedies for judicial review in this Court, are orders in the nature of those remedies that were once "prerogative writs": certiorari, mandamus and prohibition and, otherwise, declarations of right under s 75 of the Supreme Court Act.
The former writs have been abolished and the Court now grants orders in the nature of those writs. [1] It is unnecessary to deal with the old writs of habeas corpus or quo warranto, which are dealt with by ss 70 and 71 of the Supreme Court Act.
The provisions of s 69(4) of the Supreme Court Act extend the term "face of the record" to include the reasons expressed for an ultimate determination, at least in relation to a court or tribunal. There is no suggestion that the Commission is either a court or tribunal.
Ordinarily, mandamus and prohibition may be granted for jurisdictional error, but not for non-jurisdictional error of law. Certiorari, on the other hand, issues for error of law on the face of the record (which, for the purposes of this Court, includes the reasons for decision of a court or tribunal) but, generally, issues for errors by courts or tribunals only. On the other hand, declaratory relief is available from the Court under s 75 of the Supreme Court Act. [2]
[3]
The Health Care Complaints Act
The Court has dealt with some of the terms of the Act already. Nevertheless, it is necessary to deal more fully with the purposes of the Act and its structure.
The primary object of the Act is the establishment of the Commission as an independent body for the purpose of receiving and assessing complaints relating to health services and health service providers; investigating and assessing whether any such a complaint is serious and should be prosecuted; prosecuting the complaints; and resolving or overseeing the resolution of complaints. Further, the role and principles of the Commission, itself, are prescribed by the terms of s 3A of the Act, which make clear that "[t]he Commission is an independent body with responsibility for dealing with complaints under [the Act], with particular emphasis on the investigation and prosecution of serious complaints in consultation with relevant professional councils".
By the terms of s 3A(5A), the professional councils are given the responsibility for the management of complaints, in conjunction with the Commission. The professional council for medical practitioners is the Medical Council of New South Wales. [7]
The Act gives the right to complain about the professional conduct of a health practitioner, which relevantly includes a doctor and/or psychiatrist, to a patient (described as client), the parent or guardian of the client, a delegatee of the client, a health service provider, a member of Parliament, the Health Secretary and the Minister. Further, the Commissioner may also make a complaint, but in more restricted circumstances. [8]
Section 16 of the Act requires the Commission to give notice of the making of a complaint, the nature of the complaint and the identity of the complainant to any person against whom a complaint has been made. That notice must be given not later than 14 days after the Commission's assessment of the complaint under Division 4.
As already stated, the provisions of ss 19, 20, 20A and following deal with the assessment of complaints that may be made. Section 19(1) of the Act requires the Commission to assess a complaint, the purposes of which are prescribed by s 20(1) of the Act, to which earlier reference has been made.
Further, the provisions of s 20A of the Act require the Commission to review an assessment of the complaint and to keep it under review during the time that the complaint is active. The "review" to which s 20A of the Act refers, is different from the more formal review that, in this case, led to the Review Decision.
[4]
Ground i: Denial of procedural fairness
The plaintiff complains that the Commission denied him natural justice or procedural fairness. As already indicated, the purpose of an assessment and an investigation by the Commission is to investigate the medical practitioner and the Commission may, after such an investigation, make adverse findings against the medical practitioner. There is no capacity to make adverse findings against a complainant.
The complaint of the plaintiff is that he was not given the opportunity to view and to reply to the response by the medical practitioner, at least for the purpose of the Primary Decision. As a matter of fact, the complainant did not see the medical practitioner's response and, prior to the Primary Decision, was unaware of its content.
However, as at the Review Decision, the complainant, being the plaintiff in these proceedings, had been provided with a summary of the medical practitioner's response. That summary was contained in the Primary Decision.
As a consequence, the plaintiff did have the opportunity to reply to those matters that were raised by the medical practitioner in response to the complaint that the plaintiff had lodged. Thus, by the time the Review occurred, the plaintiff had been given ample opportunity to reply to those matters raised by the medical practitioner.
Natural justice, or procedural fairness, requires a court or tribunal that is required to act judicially, to provide to each party against whom there may be adverse findings, a reasonable opportunity to prepare that party's case and to present that case. It is not the function of any tribunal, and it is not the function of the Commission, to ensure that a party provided with the opportunity uses it to that party's best advantage. [14]
Whatever may have been the "unfairness" occasioned by the primary decision-maker not summarising those matters raised by the medical practitioner and not allowing a response, any such "unfairness" was overcome by the capacity of the plaintiff to reply to those issues for the purpose of the Review. [15]
Further, where, as is the case under the Act, a review is conducted in which the decision-maker on review has all of the jurisdiction and powers of the primary decision-maker and the nature of the review is a de novo assessment of that which is under review, any denial of procedural fairness must be judged by the circumstances in which the decision under review is produced. [16]
[5]
Ground ii: Proper, genuine and realistic consideration of the merits
The complainant details a list of five matters that he claims were not present in the Report of the medical practitioner and claims that none of those matters had been given any proper, genuine or realistic consideration in either the Primary Decision or the Review Decision or by the medical practitioner in his response. There is a degree of confusion in the ground outlined between a failure of the medical practitioner to deal with matters and a failure by the Commission to deal with matters. If, as alleged, the medical practitioner failed to deal with a number of matters in his medico-legal report, that would be a matter that would be relevant to the judicial review of that medico-legal report, if such a review was available.
The Commission, in each of the Primary Decision and the Review Decision, dealt with the alleged failure by the medical practitioner, by making clear that it was open to the medical practitioner to take into account the "relevant facts" to reach his diagnosis. That which is the subject of complaint by the plaintiff is that neither the Commission, in each of its decisions, nor the medical practitioner, dealt with the "merits" of the matters raised by the complainant.
In considering this ground, the context of the report prepared by the medical practitioner needs to be emphasised. The medical practitioner was not treating the complainant. The medical practitioner had been qualified to provide a medico-legal report for the purpose of proceedings in the Federal Court of Australia relating to sexual discrimination and harassment.
In the situation before the Commission, nothing done or not done by the medical practitioner affected the health and safety of the public or the complainant, or involved the Commission in protecting the health and safety of the public. [20] The Report was, after being compiled, delivered to the complainant's solicitor, who was then in a position of being able to take a number of steps.
First, the solicitor could have provided to the medical practitioner independent evidence of the conduct about which the complainant informed the medical practitioner. Secondly, and related to the first aspect, the solicitor could have sought a further or different report as a result of that material being provided.
[6]
Ground iii: Ultra vires or error of law by failing to identify the correct issue
The plaintiff correctly states that a medico-legal opinion is different to a medical opinion, because it must satisfy several rules to render it admissible. The plaintiff cites Makita (Australia) Pty Ltd v Sprowles [26] to support that proposition.
But the proposition does not advance the plaintiff's Summons in this Court. On the contrary, it makes more obvious that the plaintiff was complaining not about the provision of a medical service, but about the expression of expert opinion, based upon medical expertise, which was sought to be used as evidence in judicial proceedings.
As a consequence, many of the issues that might otherwise satisfy the Commission that an investigation was warranted may not be present or relevant. As earlier stated, a wrong medico-legal opinion does not affect the safety of the public or the plaintiff.
The complaint made by the plaintiff in this ground is to suggest that the Commission failed to identify that the complaint was about a medico-legal opinion and not about the provision of medical services or a medical opinion. As a matter of fact, there was no such failure by the Commission. Further, the fact that it was a medico-legal opinion was a relevant factor that may have been considered by the Commission in the exercise of its functions.
I do not use the term "relevant" in the foregoing paragraph as a reference to considerations that may be mandatory. [27] The question, if a question is the appropriate description for that which was before the Commission, identified by the Commission was the correct one. It was required to assess whether it would investigate the complaint and it decided that it would not. That was the issue it was required to decide and the decision in that regard was not ultra vires. Nor did it fail to identify the correct issue. Ground iii fails. The Ground does not give rise to error of law, nor to jurisdictional error.
[7]
Ground iv: Failure to consider relevant considerations
The plaintiff relies, amongst other things, on the comments of the High Court in Peko-Wallsend Ltd v Minister for Aboriginal Affairs. [28] As is made clear by the High Court in a number of judgments, the term "relevant considerations", which the failure to consider will give rise to error of law and jurisdictional error, refers to those considerations that are rendered mandatory by a proper construction of the statutory scheme that gives rise to the decision-making process.
Essentially, the plaintiff relies upon the proposition that a diagnosis of "delusional disorder", which emanated from the qualification of the medical practitioner, in a medico-legal report "is harmful to the public and not in the public interest". Such a bald proposition must be wrong.
Presumably, at least, the plaintiff is submitting that an incorrect diagnosis of that kind may be harmful to the public and not in the public interest. A psychiatrist is, almost by definition, given the right to diagnose psychiatric disorders. It is one of the fundamental purposes of psychiatrists.
The term "delusional disorder" is a psychiatric disorder, recognised, as the plaintiff makes clear, by DSM-5 [29] . There are a number of sub-types to this disorder and its essential feature is the existence of one or more delusions that persist for a significant period, being at least one month. The disorder is differentiated from schizophrenia; and from the effects of drugs or other medical conditions. Further, the delusions that the psychiatrist considers has given rise to the delusional disorder are not necessarily bizarre or do not necessarily lead to bizarre behaviour.
The proposition that it is "harmful to the public and not in the public interest" to allow psychiatrists to diagnose delusional disorder is manifestly incorrect and undermines any proposition upon which it is based. More importantly, the Commission was not required to decide whether the plaintiff had delusional disorder. No contrary diagnosis was submitted to the Commission, nor to this Court.
The Commission was required to decide whether to investigate the complaint. Some provisions of the Act require it to investigate a complaint. None of those provisions were engaged and there are no "mandatory" considerations that require a decision other than the one the Commission made. If there be any error in relation to the conclusion reached by the Commission to which this ground of judicial review relates, it is an error in the consideration of the merits and not as a result of a failure to consider any mandatory or relevant consideration. There is no jurisdictional error or error of law disclosed by this Ground.
[8]
Ground v: Apprehension of bias
The plaintiff relies on apprehended bias in the decision-making process of the Commission because the Commission consulted with the Medical Council of New South Wales and the medical practitioner was a member of the Medical Council. It is not suggested that the medical practitioner was a member of the Medical Council constituted for the purpose of consultation with the Commission in this matter.
Further, it is not suggested that the medical practitioner was consulted as a member of the Medical Council. As has been made clear in these reasons, and as was made clear by the Commission, the medical practitioner was provided with a copy of the complaint and he responded thereto. This was done in his capacity as the medical practitioner against whom the complaint had been made.
There are two fundamental answers to the ground raised of apprehension of bias. First, the Act requires the Commission to consult with the Medical Council of New South Wales in any complaint made against a doctor. [30]
The rule against bias, which is an aspect of natural justice and/or procedural fairness, ensures the fact of and the appearance of an impartial hearing in the adjudication of matters so that the person before the tribunal or decision-maker has a "fair hearing". The fair hearing rule, together with the notion of procedural fairness (a reasonable opportunity to prepare and to present a case), make up the two aspects of natural justice. The fair hearing rule has a number of subsets of which bias, or the appearance of bias, is one.
Nevertheless, the most common exception to the need for impartial and unbiased hearing is the rule of necessity, under which an adjudicator, who may give an informed bystander the appearance of being prejudiced or biased, is not required to be disqualified from participating in proceedings.
In the United States, it has been described as a doctrine that will not be allowed to destroy the only tribunal with power to act. In Australia, and the remainder of the common law world, it has been applied similarly and is applicable where a participant in the decision-making process would otherwise be subject to disqualification on account of bias.
The law requires that, where it is permissible, the person or body participating in the decision-making process that may be biased, be constituted in a way which avoids any actual or perceived bias. Thus, a matter that can be determined only by the Supreme Court of a State and involves a judge of the Supreme Court, may be conducted by the appointment of an Acting Judge to deal with that particular matter.
[9]
Ground vii: Medical ethical guidelines and Codes
The plaintiff submits that the Commission failed to have regard to a breach of ethical guidelines and codes of practice said to be contravened by the medical practitioner. There are two related concepts involved in this ground, only one of which may be relevant to the Court in these proceedings.
Assuming, without at this stage accepting, that the medical practitioner breached medical ethics and/or codes of practice, is the Commission required to take that aspect into account? Further, if it does, is it required to assess the complaint in a different manner and reach a different outcome?
In order to establish legal or jurisdictional error on the part of the Commission arising from the foregoing, it is not necessary to establish objectively that the medical practitioner breached the ethical standards or code or practice. It is only necessary to establish that the Commission was required to deal with the issue, but did not. However, if the Court were not satisfied that there was merit in the allegation against the medical practitioner, there may be discretionary aspects as to whether any remedy should issue.
The issue of the code of ethics and practice is a relevant consideration in the sense that the issues are able to be considered by the Commission (i.e. they are not irrelevant considerations). However, neither consideration is a required consideration and, therefore, is not "relevant" in the sense that a failure to consider them would give rise to either jurisdictional error or error of law.
On this ground, I reiterate those matters with which the Court dealt at [71]-[83] above and, in particular, at [80]-[83]. The Primary Decision summarises the complaint, relevantly, as follows:
"You felt that [the medical practitioner] breached ethical standards, codes of conduct and good medical practices".
The Commission, in the Primary Decision, then stated:
"[The medical practitioner] provided a reasonable explanation for this diagnosis… including an explanation of the information and factors he took into account, as well as his analysis… The Commission… did not identify any concerns with regard to this matter.
- No evidence that [the medical practitioner] acted outside the scope of his training…
-… there was insufficient evidence found to demonstrate that [the medical practitioner's] conduct towards you was below the standard reasonably expected…"
[10]
Ground viii: Legal unreasonableness
I have already referred to some grounds of the Summons, which seek to challenge or review the medico-legal report. The plaintiff was not prepared to concede that Ground viii was in that category.
Nevertheless, much of what is said in support of Ground viii, deals with the legal unreasonableness of the diagnosis of the medical practitioner, rather than the decision or decisions of the Commission. In essence, in this ground, the two aspects are interwoven.
The plaintiff submits that the Commission decisions disclose legal unreasonableness because they allow a "medico-legal doctor" to be the trier of fact in judicial proceedings to which the medico-legal report relates. The plaintiff relies on the proposition that the medical practitioner has "taken it upon himself to act as the ultimate arbiter of fact by opining that none of the facts as stated by [the plaintiff] are true." The plaintiff submits that this is a process "prohibited by law".
As a consequence of those submissions, it is submitted by the plaintiff that "therefore", it is "fundamentally unreasonable that the [Commission] be allowed to condone a medico-legal report which usurps the courts (sic) authority. It is well-established law that an expert cannot overwhelm the duty of the decision-maker of fact to make up its own mind."
First, an objection to evidence on the basis that it answers the ultimate issue in proceedings is no longer available. Evidence is admissible if it is relevant. [31] Of course, there are exceptions prescribed by the Evidence Act. Evidence is relevant if, assuming it be accepted, it could "rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding". [32]
In the case of expert evidence, an opinion, for example on the cause of death in a murder trial, may well answer one of the ultimate questions in the proceeding. That expert opinion does not, for that reason, become inadmissible. [33] Neither is it binding on a court in proceedings in which the opinion is admitted.
More importantly, the Commission is not required to deal with what should, or should not, be appropriate opinions expressed by a medical practitioner for the purposes of legal proceedings. As stated in relation to an earlier ground, it is manifest that a psychiatrist is required to form an opinion and express an opinion, where qualified so to do, on the existence of psychiatric disorders.
[11]
Ground ix: Manifest illogicality and irrationality
The plaintiff submits that the decisions of the Commission suffer from illogicality and irrationality and that there is no realistic or logical way to reach the conclusion the Commission did. In so arguing, the plaintiff submits that it is illogical and irrational for the Commission to conclude that it was open to the medical practitioner to choose facts he considers relevant in order to form his diagnosis. In answer to this proposition, one need only ask, what other facts would the medical practitioner choose?
It is unnecessary for the Court to expand on the legal meaning of illogicality and irrationality, for the purpose of these proceedings.
The kernel of this submission is that it was irrational and illogical for the Commission to accept that the medical practitioner was entitled to disbelieve the plaintiff. Accepting, as I do, that irrationality in the finding of a jurisdictional fact is capable of amounting to jurisdictional error, I do not comprehend the irrationality that is argued.
Essentially, the plaintiff submits that a medico-legal report, or the medical practitioner that compiles it, is required to believe the patient/client/litigant in all that he says and does and all that he relies upon for the purpose of the proceeding for which the report has been commissioned. Such a duty, if it were ever to exist, would render meaningless almost every medical opinion that was the subject of evidence in proceedings.
Every day, medical practitioners differ in opinion as to whether there is a clinical basis for pain and suffering; whether the expressions of pain and suffering from a frank injury are genuine; whether the complaints of the plaintiff in personal injury cases are "genuine". Usually, those complaints and those differences of opinion relate to frank injuries for which there can be clinical and independent corroboration or explanation.
However, the process is no different with a psychiatric injury. It is for the medical practitioner to determine whether, and if so to what extent, the medical practitioner believes that which the patient or client is providing by way of history.
There is no irrationality or illogicality in the Primary Decision or the Review Decision of the Commission and this ground, too, must fail as it discloses no error of law nor jurisdictional error.
[12]
Conclusion
For the reasons outlined, the plaintiff's Summons must be dismissed. None of the grounds relating to either the Primary Decision or the Review Decision have been established or discloses jurisdictional error or error of law.
An issue arose in these proceedings as to an extension of time. The plaintiff was well out of time in relation to the time limit prescribed by the Uniform Civil Procedure Rules. The reasons given for the delay are less than satisfactory. Nevertheless, each of the grounds of the Summons have been considered and no point is served by refusing leave to file the Application for Judicial Review out of time.
There is one far more fundamental aspect with which the Court, as presently constituted, should deal. None of the foregoing comments deals with the merits of the complaint made by the plaintiff against the medical practitioner. Nor, for that matter, does it deal with the merits of the decision of the Commission, whether it is the Primary Decision or the Review Decision.
If one were dealing with a patient or medico-legal client in the 1970s and the patient or client gave a history of abuse at the hands of clerics or religious leaders, a person in those days may well have considered the claim "fantastic". The allegations that have been made by the plaintiff in the Federal Court proceedings are of horrendous conduct. They have not been repeated in this judgment.
Nor has the Court, as presently constituted, dealt with the likelihood that a significant and established firm of solicitors would, either itself or through its staff, act in such a "homophobic" manner. But firms of solicitors are no different from any other employers or large firms, in that regard.
I have no reason to disbelieve the plaintiff in relation to the allegations he makes as to his treatment. If even half of it is accurate, his treatment has been appalling and, frankly, the commencement of such treatment may well be a solid basis for feelings of social exclusion and psychiatric disorders associated therewith. Those issues are not matters before the Court in these proceedings. Yet, despite that acceptance, there is no error of law or jurisdictional error in the Primary Decision or Review Decision. Further, it is for the qualified medical practitioner to determine, for herself or himself, whether to believe the plaintiff. The psychiatrist's expertise is different from mine.
[13]
Endnotes
Section 69 of the Supreme Court Act.
Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43; ASIC v Farley (2001) 51 NSWLR 494; [2001] NSWSC 326.
Section 19(1) of the Healthcare Complaints Act 1993 (NSW)
Section 20(2) of the Healthcare Complaints Act 1993 (NSW).
Section 23(1)(a) and (b) of the Health Care Complaints Act.
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564.
See section 4 of the Act, definition of "professional council", paragraph (c).
Section 8 of the Act.
Section 28(1) of the Act.
Section 3(2) of the Act.
Annetts v McCann (1990) 70 CLR 587; [1990] HCA 57.
Sullivan v Department of Transport (1978) 20 ALR 323 at 343; [1978] FCA 48.
Calvin v Carr [1980] AC 574; (1979) 1 NSWLR 1.
Twist v Randwick Municipal Council (1976) 136 CLR 106, at 116 per Mason J; [1976] HCA 58.
Director-General, Department of Trade and Investment, Regional Infrastructure and Services v Lewis (2012) 301 ALR 420; [2012] NSWCA 436 at 434 [55]; The Honourable Daniel Thomas McVeigh v Willarra Pty Ltd (1984) 2 FCR 587 at 600; [1984] FCA 421.
(2015) 255 CLR 514; [2015] HCA 1.
Ibid, at [367].
Section 3(2) of the Act.
Section 118, 119 of the Evidence Act 1995 (NSW).
Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107.
(2010) 6 ASTLR 339; [2010] NSWCA 182.
Ibid, at [45].
(2003) 77 ALJR 1088; [2003] HCA 26 at [24].
(2001) 52 NSWLR 705; [2001] NSWCA 305.
Peko-Wallsend Ltd v Minister for Aboriginal Affairs (1986) 162 CLR 24; [1986] HCA 40.
(1986) 162 CLR 24; [1986] HCA 40.
The American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013) ("DSM-5").
See s 12(1) of the Act.
Section 56 of the Evidence Act 1995 (NSW).
[14]
Amendments
12 June 2020 - corrected formatting
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Decision last updated: 12 June 2020
1. Time for filing the Summons extended to 30 November 2018; 2. Summons dismissed; 3. Plaintiff to pay defendant's costs of and incidental to the proceedings.
The foregoing letter was forwarded over the signature of Sue Dawson, Commissioner.
As a consequence of the plaintiff, apparently a legal practitioner, being self-represented before the Court, I have more fully examined the factual basis for these allegations and the affidavits upon which the plaintiff relies in these proceedings, even though some of that evidence was not evidence before the Commission, either for the purpose of determining the Primary Decision or the Review.
As may be gleaned from the foregoing, the nature of the initial complaint to the Commission was that the medical practitioner, to whom the plaintiff was referred for the purpose of obtaining a medico-legal report, reached a diagnosis of the plaintiff that was incorrect and, in the view of the plaintiff, not open to him. The plaintiff had commenced proceedings against his former employer for sexual harassment and/or discrimination; outlined the behaviour of his employer; and the medical practitioner arrived at a diagnosis of delusional disorder.
In other words, the medical practitioner took the view that the extent and severity of the discrimination was such that, in his view, in the absence of independent evidence corroborating the allegations, it was more likely that the plaintiff was delusional.
Of course, the medical practitioner may be wrong and the Court, not being a psychiatrist, takes the plaintiff at face value and accepts, for present purposes, the truth of the allegations as to discrimination and/or harassment. Nevertheless, it is part of the function of a psychiatrist to determine, or seek to determine, whether a patient is delusional, as distinct from suffering some other psychosis or disorder, or not suffering any psychiatric affect.
The plaintiff attended on the medical practitioner for the purpose of seeking and obtaining evidence of the psychiatric effect of the harassment and/or discrimination, for the purposes of the proceedings in relation to those claims. It may be, without the Court having medical evidence available to it, that the delusional disorder, were it to exist, may have been caused by initial harassment and/or discrimination of the kind suggested, resulting in the plaintiff perceiving other conduct in a manner that he may not otherwise have perceived it. The Court, as earlier stated, is not medically qualified and, in the absence of expert evidence, is unable to determine the correctness of a diagnosis of any medical condition.
The plaintiff "seeks relief from the whole of each of the decisions", but each of the decisions is a decision that "no further action will be taken regarding the matter". As a consequence, the power that has been exercised by the primary decision-maker and confirmed in the Review Decision is the power conferred by s 20 of the Health Care Complaints Act 1993 (NSW) (hereinafter "the Act"), being the power in the first dot point in s 20(1), being the decision whether "the complaint should be investigated", and it was decided that the complaint should not be investigated.
The duty imposed upon the Commission is to assess a complaint, [3] which is assessed for a number of purposes, which include whether the complaint should be investigated, as earlier stated. The Commission is then required, as part of its assessment of the complaint and as soon as practicable after commencing its assessment, to identify the specific allegations that make up the complaint and to use its best endeavours to confirm, with the complainant, whether those allegations are the ones that the complainant seeks to identify. [4]
However, the duty imposed upon the Commission under s 20(2) of the Act is a duty that arises only if the Commission decides to entertain the complaint. If the Commission, in its assessment of a complaint, decides not to investigate the complaint then the duties imposed by s 20(2), or s 20A, and many other provisions of the aforesaid Act, do not arise.
Section 23 of the Act requires the Commission to investigate a complaint if the appropriate professional council is of the opinion that the complaint should be investigated; or if, following the assessment of the complaint, it appears to the Commission that the complaint raises a significant issue of public health, or safety; or, again following assessment, it appears to the Commission that: the complaint raises a significant question as to the appropriate care or treatment of a client; or, if substantiated, would provide grounds for disciplinary action; or, if substantiated, would involve gross negligence on the part of the health practitioner; or, if substantiated, would result in the health practitioner being found guilty of an offence. The details of the offence to which the foregoing relates are currently irrelevant.
Thus, the Commission is required to investigate a complaint if the appropriate professional council considers it should be investigated and is required to investigate a complaint otherwise only if the Commission is satisfied (or it appears to the Commission) that the issues otherwise raised are disclosed. [5]
As is clear from the Primary Decision, the Commission consulted with the Medical Council of New South Wales (hereinafter the "Medical Council"), which, from its perspective, decided that no further action should be taken. As a consequence, the statutory precondition for the Commission to be required to investigate in s 23(1)(a) of the Act has not been satisfied.
Further, because the Commission, itself, does not consider that the complaint raises those matters referred to in s 23(1)(b)(i)-(v) of the Act, the other statutory condition that would require the Commission to investigate the complaint has not been satisfied.
It should be noted that the requirement to investigate is based, in relation to s 23(1)(a) of the Act, on the opinion, relevantly, of the Medical Council; and, in relation to the requirement in s 23(1)(b) of the Act, is conditioned on the opinion of the Commission, not the objective existence of the facts or circumstances referred to in the sub paragraphs thereof.
In the absence of an opinion of the kind referred to in s 23(1)(a) of the Act and the satisfaction of the Commission (by which I refer to that which appears to the Commission) to which s 23(1)(b) of the Act refers, there is no requirement on the Commission to investigate a complaint.
In those circumstances, it is open to the Commission to take the view that the complaint should not be investigated, pursuant to the terms of s 20(1) of the Act.
There are, for the reasons outlined above, real issues associated with whether jurisdictional error has occurred, leaving aside for present purposes the issue of the denial of procedural fairness. There are difficulties, in those circumstances, with the Court issuing any order for mandamus and/or prohibition, or orders in the nature thereof.
Moreover, the task in which the Commission was engaged was a preliminary assessment as to whether there should be a more formal investigation and there are significant issues as to whether, assuming an error of law, without deciding same at this point, certiorari or orders in the nature of certiorari will run to such a function or whether natural justice applies. [6] Nevertheless, as earlier stated, declaratory relief would be available for the purpose of judicial review, assuming, for present purposes, that it was a declaration of right, but it is not clear whether such relief would be efficacious or provide any practical relief to the plaintiff.
The Commission is required to carry out its assessment within 60 days after receiving the complaint and is required to investigate the complaint, as earlier stated, under certain circumstances, which include that the appropriate professional council, in this case the Medical Council of New South Wales, is of the opinion that the complaint should be investigated.
There is no requirement to which the Act expressly refers that a complainant is to be provided, prior to an assessment under s 20(1) of the Act, a copy of any documentation obtained by the Commission, either from the health service provider, or any other person, about whom a complaint has been lodged.
That which is required of the Commission in terms of notice is, at this preliminary stage, prescribed by s 28 of the Act, which requires that the Commission give notice of the action, if any, taken as a result of the complaint or the decision made in relation thereto. [9] Other than the provisions of s 28(1) of the Act and the notice prescribed by s 21A of the Act, all other notices to any person in any way connected with the complaint are dependent upon the Commission deciding to investigate a complaint and do not arise in circumstances where the Commission's decision is not to investigate the complaint.
The provisions of s 28(8) of the Act require the Commission to notify the parties that they may ask for a review of the decision assessing the complaint if that decision is not to investigate the complaint and the parties may ask for the reasons for the decision. Sub-section 28(9) provides the Commission with the jurisdiction to review a decision, if requested so to do by the complainant, and requires the Commission to review the decision if the request is made within 28 days after the complainant has been notified of the decision.
Nevertheless, the terms of ss 28 and 28A of the Act require notification of persons after an assessment has been made and not for the purpose of the assessment itself. The foregoing does not suggest that the Commission is incapable of notifying persons, but deals only with the requirements of the Act as to notification.
The purpose of an investigation is prescribed by s 29 of the Act and is described as being for the purpose of obtaining information concerning the matter complained of and to determine what action should be taken in respect of the complaint. There are then provisions dealing with the conduct of investigations.
The Commission is given powers of entry, search and seizure, and various investigatory powers, including making applications for search warrants and the like. There are offences created for the obstruction of an authorised person from investigating pursuant to the Act.
Division 6 of Pt 2 of the Act deals with the outcomes of investigations into health practitioners. The Court will not recite or summarise each of the provisions in that Division.
It is sufficient, for present purposes, to make clear that the provisions relate to "investigation[s] of a complaint against a health practitioner". In other words, the complaint and the investigation are complaints and investigations into or against, relevantly, health practitioners.
That aspect is an important particular of the statutory prescriptions to which the Act refers and impacts upon any duty imposed to observe the rules of procedural fairness. It is appropriate for the Court to recite that the Act mandates that, in the exercise of the functions of the Commission under the Act, the protection of the health and safety of the public must be the paramount consideration. [10]
As earlier stated, the provisions of s 20 (1) of the Act allow the Commission, in assessing the complaint, to determine whether the complaint should be investigated; whether the complaint should be conciliated; whether the complaint should be referred to the Health Secretary; whether the complaint should be referred to another person or body; or whether the Commission should decline to entertain the complaint. On one view, a decision to decline to entertain the complaint may be the same or have the same effect as a determination not to investigate a complaint. The Commission does not have the obligation of considering each of the actions prescribed by s 20(1) of the Act before deciding on the particular action that it chooses.
Lastly, it is appropriate, before dealing with the grounds raised by the plaintiff, to deal with the provisions of the Act that require some form of procedural fairness. First, the provisions of s 40 of the Act require the Commission to provide, to any health practitioner against whom a complaint has been made, an opportunity to make submissions. It is noteworthy that the requirement under s 40 of the Act to provide a health practitioner with the opportunity of answering a complaint is provided only to the health practitioner and is provided to the health practitioner only after an investigation has occurred under s 39 of the Act.
Further, by the provisions of s 43 of the Act, the Commission is required to give a health organisation, against whom a complaint has been made, the opportunity to make submissions based upon being informed of the substance of the grounds for the Commission's proposed action. In each case (under ss 40 and 43 of the Act), it is the person or organisation against whom a complaint is made that is provided with the right to make submissions and, in that sense, be provided with some form of procedural fairness. In that regard, the Act imposes upon the Commission a form (or some aspects) of procedural fairness as against those persons against whom adverse recommendations or decisions could be made, but not others.
In the case of judicial or quasi-judicial proceedings before a Tribunal that is required to act judicially, procedural fairness will generally be inferred. [11] Further, even in preliminary investigative functions, an investigation that may result in adverse findings as to a person's reputation, whether business or commercial, or other adverse findings of a substantial kind, attract the rules of procedural fairness. [12] But the Commission is not, in a complaint of the kind to which these proceedings relate, in a position where it is part of its function to make adverse findings against the complainant. As a consequence, that which is required by way of procedural fairness is, at best, limited.
In Annetts v McCann, the majority of the High Court made it clear that many interests are now protected by the rules of procedural fairness, which, hitherto, were not. The Court, then, went on to deal with the question of whether certain persons could make submissions to a Coroner's hearing. The submission with which the High Court was there dealing was that the appellants were entitled to address on the whole of the evidence before the Coroner.
The High Court was against such a proposition and stressed that:
"although the appellants are entitled to make submissions concerning matters which are identified as a possible source of adverse findings concerning their interests, they have no right to make submissions on the general subject matter of the inquest. Their legal entitlement is confined to making submissions in respect of matters which may be the subject of adverse findings against them personally or against the deceased." [13]
Before dealing with the particular grounds of the Summons that require discussion, it is necessary to indicate that those matters raised above at [2] by grounds vi and x relate to allegations as to failures of the medical practitioner about whom the complaint was made and do not relate to either the Primary Decision or the Review Decision, against which the plaintiff seeks a remedy. As a consequence, I will not deal with those grounds and will deal with the remainder, to the extent necessary, seriatim. In any event, the issues raised in those grounds, if intended to impact on the Primary Decision and Review Decision, do not raise relevant considerations in the jurisdictional sense and seek to argue the merits of the assessment.
As a consequence of the foregoing, any lack of procedural fairness arising from the initial failure to provide a summary of the medical practitioner's response and the initial failure to allow the complainant to respond does not give rise to a ground upon which the Review Decision should be set aside and, therefore, does not give rise to a basis upon which the Court should provide relief.
Were the Court of a different view, it would be necessary to deal with whether the Commission has an obligation to accord procedural fairness to a complainant at the point in time before an assessment is made not to investigate a complaint. In my view, given the specific legislative provisions granting aspects of procedural fairness in relation to a practitioner or medical organisation about whom complaint is made, the legislature is disclosing a clear intention that it is the subject of the complaint who or which is required to be granted procedural fairness because it is the subject of the complaint against whom adverse comments or findings may to be made. [17]
In CPCF v Minister for Immigration and Border Protection, [18] Gageler J, in dealing with the requirement for procedural fairness in relation to a detainee in immigration, said:
"The implication of procedural fairness is the product of a strong common law presumption applicable to any statutory power the exercise of which is capable of having an adverse effect on legally recognised rights or interests. Forcibly taking a person to a place to which the person does not want to go has an obvious immediate adverse effect on that person's right to liberty and may have longer term adverse effects on other rights and interests of the person depending on conditions which exist in the place to which the person is forcibly taken. Procedural fairness as implied in some contexts can have a flexible, chameleon-like, content capable of varying according to the exigencies of the exercise of power between nothingness at one extreme and a full-blown trial at the other. To imply procedural fairness as a condition of the lawful exercise of a statutory power is therefore not necessarily to require a hearing in every case in which the power might be exercised. Ordinarily, procedural fairness does not require providing a person whose interests are likely to be affected by an exercise of statutory power any greater opportunity to be heard than is reasonable in all the circumstances." [19] (Footnotes omitted.)
Were it not for the fact that the Review Decision overcame the allegation of a lack of procedural fairness, I would conclude that, at least in its function in assessing whether a complaint should be investigated, the Commission owed no duty of procedural fairness to a complainant. Nevertheless, any allegation of a denial of procedural fairness has been cured by the review process and this ground does not give rise to error of a kind that would result in a declaration nor any of the writs or orders in the nature of writs.
A denial of procedural fairness, where required, is jurisdictional error. This ground does not give rise to jurisdictional error; nor to error of law.
Thirdly, the solicitor could have commissioned another medical practitioner to prepare a separate report dealing with the psychiatric effect of the discrimination and harassment alleged by the complainant. Fourthly and lastly, the solicitor could have done nothing with the report.
The medico-legal report was, at the least, privileged, the privilege wherein lay with the complainant. [21] The privilege would be waived if the legal representative or client, in this case the plaintiff or his lawyers in the Federal Court proceedings, were to engage in conduct inconsistent with the existence of the privilege and, depending upon a number of circumstances, may be waived by the service of a different (and helpful) psychiatric medico-legal report.
Nevertheless, whether or not a different report was relied upon, by the plaintiff and/or his lawyers in the Federal Court proceedings, is a matter entirely within the discretion of the plaintiff and his lawyers and no decision of the Commission would be public or be able to be tendered to prove any fact in the Federal Court proceedings.
Apart from the foregoing comments, the Commission was required to assess the complaint pursuant to the Act, the relevant details of which have been sufficiently summarised earlier in these reasons. The proposition that an administrative decision-maker, who has not mentioned particular aspects before it, has not "considered" a relevant matter in the decision, is not one that a court would lightly reach. It requires clear evidence. [22]
In Swift v SAS Trustee Corporation, [23] Basten JA, with whom Allsop P agreed, referred to this ground and its history and made it clear that the ground required that the decision-maker "properly consider … the merits of the case". [24] The ground is the equivalent of that which was upheld in Dranichnikov v Minister for Immigration and Multicultural Affairs, [25] being a failure "to respond to a substantial, clearly articulated argument relying on established facts", which the High Court described as a failure to accord natural justice.
There is no such failure in these decisions. That which is sought to be agitated in Ground ii is the merits of the decision, either the Primary Decision or the Review Decision, not any error of law or jurisdictional error.
The Commission was fully aware of its power and the provision under which it was operating. It chose not to investigate the matter of the complaint, as it was entitled to do, unless it appeared to the Commission that the matter fell within the provisions of s 23(1)(b) of the Act or it appeared to the Medical Council of New South Wales that the matter should be investigated. It is its appearance to the Commission or the Medical Council, not the objective existence of the facts, which requires an investigation of the complaint under s 23 of the Act.
Moreover, lest the foregoing be seen as an endorsement of the argument on merits, I should make it clear that the submission put by the plaintiff that "the only facts that a medico-legal doctor can 'choose' to reach a diagnosis are those presented to him/her by the patient as indicated in my complaint" is patently wrong. If a psychiatrist does not believe the history and circumstances or context of complaints, that psychiatrist is entitled to reach a diagnosis on the basis of the non-acceptance of the facts. This ground is also not established and there is no jurisdictional error, nor error of law in the decisions of the Commission.
In this case, the Act, binding on the Commission, requires the Commission to consult with the Medical Council of New South Wales. The Medical Council of New South Wales was not constituted, for this purpose, in a way that included the medical practitioner. If the Medical Council of New South Wales were not consulted, there would be a breach of the Act and the processes that the legislature has mandated. In the circumstances, consultation with the Medical Council of New South Wales was necessary and is not caught by the issue of bias raised by the plaintiff.
Further, being the second basis upon which the bias complaint cannot succeed, correctly in the circumstances, the Medical Council of New South Wales and/or the Commission took steps to ensure that the medical practitioner was not, as a matter of fact, involved in the process of consultation, the decision-making process or any consultation or discussion associated with same. In the circumstances, this ground cannot succeed; does not disclose error of law; nor does it disclose jurisdictional error.
As earlier stated, Grounds vi and x are criticisms of the medico-legal report and the conduct of the medical practitioner and not of the Primary Decision or the Review Decision. As a consequence, I do not deal with those grounds.
The Review Decision also expressly referred to the plaintiff's complaint as to breach of "medical ethics, standards and regulations" and also to the complaint that the Primary Decision did not deal adequately, fairly or reasonably with the complaint. It concluded that there were "no identified breaches of medical ethics, standard and regulations in the conduct of the consultation or preparation of the report".
In light of the foregoing findings in the Primary Decision and the Review Decision, the Commission has dealt with this aspect of the complaint and no jurisdictional error or error of law arises on the basis of this ground.
If a psychiatrist, even wrongly, diagnoses a patient or a party in legal proceedings as having delusional disorder, the psychiatrist is entitled so to do. The psychiatrist may be wrong. But any error in the expert opinion expressed is not one that will affect the safety of the public or even of that individual for whom the diagnosis is provided.
The notion that the Commission's reasoning or outcome suffered from "legal unreasonableness" on the basis that it is "legally unreasonable" to allow a psychiatrist to diagnose delusional disorder, because it is the very matter before the Court for which the opinion has been sought, is untenable and unarguable. This ground also must fail. No jurisdictional error nor error of law is disclosed.
Further, as a matter of fact or law, the opinion expressed is not the ultimate question before the Federal Court. The ultimate questions in those proceedings are: was the complainant the subject of unlawful discrimination or harassment; and what, if any damage was suffered as a result. The opinion of the medical practitioner may not be admissible on the first question, but it would be, if tendered, admissible on the second. In each case, it is, at best, evidence going towards the ultimate issue.
For the reasons already provided, the Summons for Judicial Review must be dismissed.
The Court makes the following orders:
1. Extend time for the filing of the Summons to the date upon which it was filed, namely, 30 November 2018;
2. Summons dismissed;
3. The plaintiff shall pay the defendant's costs of and incidental to the proceedings.