Before the Tribunal is an application to lift a suspension which was imposed on 15 March 2018 upon Dr Chen (the practitioner) pursuant to s 165L of the Health Practitioner Regulation National Law (NSW) ("National Law"). The suspension was ordered after the Tribunal heard extensive evidence over four days commencing on 12 March 2018 relating to the complaints made by the HCCC against the practitioner.
Complaint One contained 11 principal particulars and numerous sub-particulars in support of the claim that the practitioner was guilty of unsatisfactory professional conduct under s 139B(a) and (l) of the National Law. The particulars related to the alleged inappropriate prescribing of Ketamine to both adults and a child. Ketamine has not been approved for use for the treatment of depression, yet the practitioner prescribed such drug on numerous occasions. The particulars allege that the prescribing was carried out for a purpose that did not accord with the recognised therapeutic standard of what is appropriate contrary to regulation 79 of the Poisons and Therapeutic Goods Regulation 2008 ("the PTGR").
Other particulars alleged that the practitioner failed to communicate, advise and liaise with the treating practitioners of 21 patients when he prescribed Ketamine; that he failed to provide a treatment summary for the benefit of any subsequent health provider to such patients; that he acted without proper authority pursuant to s 28(2)(a) of the Poisons and Therapeutic Goods Act 1956 ("the PTG Act") when he prescribed Ketamine which is a drug of addiction within the meaning of the PTGR to the above patients; that he used a consent form when he prescribed Ketamine to such patients which lacked information concerning the risks of the use of care to mean in circumstances where the prescribing of Ketamine for depression was experimental and there was a lack of evidence-based treatment protocol. Further, the particulars alleged that the practitioner failed to obtain proper informed consent from the 21 patients referred to above.
As confirmed in an Agreed Statement of Facts, the practitioner admitted the above conduct. Further, the practitioner admitted that he prescribed ketamine, a drug of addiction within the meaning of the PTGR, to patient H who was a minor.
Complaint Two contains two principal particulars and four sub-particulars. Such complaint relates to the alleged inadequacy of record-keeping by the practitioner. The practitioner admits that he failed to keep adequate medical records in respect of the above 21 patients in that the records did not contain sufficient information that will enable another medical practitioner to carry on the management of such patients. The practitioner admitted such allegation. The practitioner did not admit three other particulars concerning the adequacy of the administration of Ketamine.
In respect of Complaints One the practitioner admits that he is guilty of unsatisfactory professional conduct pursuant to s 139B(1)(b) of the National Law.
The third complaint alleges that, as a result of findings which could be made by the Tribunal, the practitioner is guilty of professional misconduct under s 139E of the National Law. The practitioner denies such claim.
[2]
Background
At the conclusion of the hearing on 15 March 2018 following the hearing of all of the evidence to be adduced by each party relating to the complaints, including the filing of an agreed statement of facts, the HCCC applied for an immediate suspension, pursuant to s 165L of the National Law relying upon the evidence heard by the Tribunal and the admissions made in the agreed statement of facts. Section 165L provides:
165L Interlocutory orders [NSW]
(1) The Tribunal may, during any proceedings under this Law, exercise any power or combination of powers conferred on the Tribunal by section 149A, except the power to caution or reprimand.
(2) The Tribunal may, in respect of an appeal under section 159B, make an order staying the decision of the Council appealed against until the appeal has been disposed of.
(3) The Tribunal may, during any proceedings under this Law, suspend a registered health practitioner's or student's registration if -
(a) it has found the subject-matter of the complaint against the practitioner or student to have been proved; and
(b) the complaint has not yet been finally disposed of; and
(c) it is satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or the action is otherwise in the public interest.
The hearing of the Complaints is part heard. All evidence on the aspect of the conduct alleged against the practitioner has been heard, and the evidence from both parties has concluded. When all submissions had been heard, Stage 1 will be complete. No submissions have yet been heard in relation to the issue of guilt of the practitioner in relation to the particulars which are not admitted, nor in respect of any disciplinary action which might follow in consequence of the findings which the Tribunal may make. Accordingly, Stage 1 of the proceedings is yet to be completed. Stage 2, will relate to any disciplinary measures that might be invoked by the Tribunal.
The application for the interim suspension was made at the conclusion of the hearing on the afternoon of 15 March 2018. The application was opposed by the practitioner. The Tribunal heard brief argument from both the HCCC and from the respondent in relation to the application, as time did not permit the hearing of extensive submissions. The Tribunal thereafter adjourned to consider such application. The Tribunal then returned and announced that, relying upon the admissions made by the practitioner, the Tribunal had concluded that the conduct established unsatisfactory professional conduct in respect of Complaint one. Accordingly, the application for immediate suspension was granted. However, the Tribunal granted leave to the practitioner to apply for a different order provided such application was made by 29 March 2013.
Such application for a different order, namely a revocation of the suspension has now been made by the practitioner.
[3]
Practitioner's Submissions
The practitioner submits that since the Tribunal granted the immediate suspension upon a finding of unsatisfactory professional conduct and not professional misconduct, it has no jurisdiction to impose the suspension. It submits that, having made such a finding, the provisions of s 149 of the National Law applies. That section authorises the Tribunal to exercise disciplinary powers. It provides:
149 Powers may be exercised if complaint proved or admitted [NSW]
The Tribunal may exercise any power conferred on it by this Subdivision in relation to a registered health practitioner or student if--
(a) it finds the subject-matter of a complaint against the practitioner or student to have been proved; or
(b) the practitioner or student admits to it in writing to the Tribunal.
Section 149A(1)(a) to (f) provides general power to the Tribunal to caution, reprimand and or counsel a practitioner. It does not include a power to suspend a practitioner from practice. However, s 149C imposes the power to suspend or cancel registration by relevantly providing:
149C Tribunal may suspend or cancel registration in certain cases [NSW]
(1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied--
(a) the practitioner is not competent to practise the practitioner's profession; or
(b) the practitioner is guilty of professional misconduct…
The practitioner maintains that in the absence of a finding of professional misconduct, the Tribunal has no power to invoke an interim suspension pursuant to s 165L once it has only made a finding of unsatisfactory professional conduct, and not of a more serious finding. The practitioner submits that, before an interim suspension order can be made under the provisions of s 165L, each of the findings in sub paragraphs (a), (b) and (c) must be made, including a finding of professional misconduct by the practitioner.
The practitioner also made a further submission, namely that the provisions of s 165L can only be invoked after the hearing of Stage 1 has been fully completed. In this way, the Tribunal could then make a finding of professional misconduct, which would be sufficient to found an application for an interim suspension. Alternatively, if the Tribunal now made a finding of professional misconduct, the provisions of s 165L could be invoked.
[4]
Respondent's Submissions
The respondent rejects such submissions. It submits that once admissions are made to in the course of a hearing which give rise to concern as to the competency of the practitioner, or if evidence is provided by the practitioner during the course of the hearing which demonstrate a lack of competency, the Tribunal can invoke its powers under s 165L to fulfil its paramount statutory obligation as contained in s 3A of the National Law, namely to protect the public from incompetent medical practitioners.
The HCCC rejects the submission that s 149 is invoked if the Tribunal makes a finding of unsatisfactory professional conduct, such that the Tribunal is in limited to powers as set out in s 149A. The HCCC submits that a finding of unsatisfactory conduct is sufficient to grant a suspension under s 165L.
[5]
Interpretation
There has been no judicial interpretation of s 165L relevant to the issue which is now before the Tribunal. Accordingly, the Tribunal is required to construe the intention of Parliament, and to give effect to such intention. Section 33 of the Interpretation Act 1987 (NSW) provides:
In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.
Whilst it is accepted generally that such provision should only be reverted to in case of ambiguity, it has also been accepted that the provisions are to be taken into account in construing a statute "not only where those provisions on their face offer more than one construction, but also in determining whether more than one construction is open": see Dawson J Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 at 235; 91 ALR 16 at 19, which concerned the provisions of an analogous Victorian State legislation. Dawson J also said at [234]:
It has always been the cardinal rule of statutory interpretation that a Court should strive to give effect to the intention of Parliament. In doing so the purpose of the legislation may be all-important.
It follows that such approach should be adopted even if there is no ambiguity or inconsistency, which was a pre-requisite to the application of the traditional mischief or purpose rule: see Miller v Commonwealth (1904) 1 CLR 668 at 674; Wacal Developments Pty Ltd v Realty Developments Pty Ltd (1978) 140 CLR 503 at 513.See also Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 305, 321.
The Tribunal can infer that the power provided by s 165L was bestowed upon the Tribunal to assist it in the objective and guiding principle of the act as set out in s 3A of the National Law which provides:
In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
The Second Reading Speech of Parliament when s 165L was introduced relevantly provided:
The bill implements this recommendation by amending section 165L to allow NCAT to issue an interim suspension order if particulars of a complaint have been proven and NCAT considers that such an order is necessary to protect the public. This will allow a practitioner, when the particulars of a complaint against the practitioner have been proven, to be suspended while giving NCAT appropriate time to consider what final order should be imposed.
In Prakash v HCCC [2006] NSWCA 153 at [91], Basten JA said:
… The purpose of any order made upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted.
[6]
Observation
There are certain aspects of s 165L which give rise to doubt. Firstly, the exercise the power provided by that section's may be exercised "during any proceedings", as provided by subparagraphs (1) and (3). The practitioner submits that "during" should be interpreted as only after the evidence and submissions on the issue of liability; that is, Stage 1, has been completed.
The Tribunal has regard to other indicia contained in s 165L which clearly indicates that the power may be exercised if the subject matter of the complaint has been proved; that the complaint has "not yet been finally disposed of"; and that it is appropriate to grant the interim suspension for the protection of the health and safety of any person or persons.
The Tribunal rejects the submission that the power is only to be exercised at the conclusion of Stage 1. There is no requirement that such power can only be exercised at the completion of certain stages of the proceedings. If such submission was correct, the power invested by s 165 L would be of little utility because the Tribunal, at the final stage, could exercise its power under s 149. The discretion is granted to the Tribunal at any time during the proceedings to order a suspension.
A further area of potential uncertainty is the meaning of the word "subject matter" contained in s 165L(3)(a). The Tribunal, applying the grammatical and ordinary sense the phrase, concludes that the "subject matter" is the hearing of the Complaints made against the practitioner. It means no more than the subject matter for determination in the legal proceedings: see Joye v Beach Petroleum (1996) 137 ALR 506 at 516; Fencott v Muller (1983) 152 CLR 570; 46 ALR 41; Crouch v Commissioner for Railways (Qld) (1985) 62 ALR 1; 159 CLR 22 per Mason, Wilson, Brennan, Deane and Dawson JJ at 37. As referred to in Joye at 516 (Beaumont and Lehane JJ) the application of such principle in Federal law concerning the word "matter" has the same ordinary meaning in the State legislation then being considered.
The subject matter referred to in s 165L consists of numerous particulars and allegations. If established, such conduct can be found to be unsatisfactory professional conduct. However, the Tribunal may also come to the view that in the totality of its findings, the gravity may constitute professional misconduct. The particulars relied upon are but part of the subject matter of the complaint.
[7]
Consideration
The Tribunal is satisfied that in applying the provisions of s 165L as a basis for jurisdiction, the Tribunal's focus must be upon whether it is satisfied that the requirements contained in the three subparagraphs of s 165L are satisfied. If so, the Tribunal may proceed to impose the interim suspension.
So construed, if the Tribunal makes a finding that the subject matter of the complaint, namely unsatisfactory professional conduct, is established, the requirement of subparagraph (a) is satisfied. There is no dispute that the complaint has not yet been finally disposed of as provided by (b). It is a matter for the discretion of the Tribunal to determine whether it is satisfied that it is appropriate to make an interim suspension for the protection of the health or safety of any person as provided by (c).
Section 165L contains no requirement that a finding of professional misconduct must be made before the Tribunal can invoke the power to make an interim suspension. Circumstances may exist where a lack of confidence in the practitioner has been demonstrated or that a need for the protection of the public has arisen before any finding has been made of professional misconduct. Division 10 of the National Law is entitled "Constitution and proceedings of Tribunal". Section 165L is contained in subdivision 3 thereof entitled "Proceedings of Tribunal [NSW]". It can be inferred that the section was incorporated in the Subdivision for the express purpose of providing the Tribunal with ample power to impose an immediate suspension where it was considered necessary. Section 165L was enacted as an incidental power invested in the Tribunal for the protection of the public as an interim measure, pending disposition of a complaint, in furtherance of the paramount objective expressed in s 3A of the National Law.
The provisions contained in ss 149A and 149C do not limit the operation of s.165L. Sections 149A and 149C are contained in Subdivision 6 Entitled "Disciplinary Powers of Tribunals [NSW]" which is contained within Division 3 entitled "Complaints [NSW]". Section 149 addresses the powers that may be bestowed upon a Tribunal in respect of disciplinary proceedings once a complaint has been heard. Such powers are separate and distinct from the power provided to the Tribunal to grant an immediate suspension by way of interlocutory relief for the protection of the public, as an interim measure. The power to suspend provided by s 149C(1) may be invoked when a complaint is upheld: see s 149(1)(a).
In these proceedings, based upon the admissions of the practitioner both in the pleadings and provided during the oral evidence, the Tribunal considered that it was necessary, for the protection of the public to invoke the interim suspension.
At the conclusion of the hearing, the Tribunal will determine any measures which are necessary for the protection of the public. Any orders it makes will supersede the interim suspension.
[8]
ORDERS
It follows that the application, based upon a lack of jurisdiction in the Tribunal to grant the interim suspension pursuant to s 165L, is dismissed. The costs of this application will be costs in the proceedings, unless a different application for cost is made within 21 days of the date of this order.
[9]
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
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Decision last updated: 24 April 2018