Health Care Complaints Commission v Dowla

NCAT Occupational|2018-05-25

Background and statutory framework

On 17 March 2017, the Commission filed an application with the New South Wales Civil and Administrative Tribunal (NCAT) for disciplinary findings and orders under the National Law in relation to a Complaint made in respect of Dr Dowla. The Commission referred the Complaint to the Tribunal under s 145C(1) of the National Law.
Where a complaint is referred to NCAT under the National Law, an inquiry must be conducted unless the registered health practitioner who is the subject of the complaint admits the subject matter of the complaint in writing: s 165H of the National Law.
When conducting an inquiry into a complaint referred to the Tribunal about a medical practitioner, the Tribunal must be constituted by four members - a member of the Occupation Division of NCAT who is a senior judicial officer, two medical practitioners selected for appointment by the Medical Council and one lay person: s 165B(2). However, when constituted to make an "interlocutory decision" within the meaning of the NCAT Act, the Tribunal is to be constituted by the Tribunal List Manager or the senior judicial officer referred to in s 165B(2)(a): s 165B(5A) of the National Law.
Section 165B of the National Law relevantly provides: 165B CONSTITUTION OF TRIBUNAL FOR COMPLAINTS, APPLICATIONS AND APPEALS [NSW] … (2) Except as provided by subsections (4), (5) and (5A), the Tribunal, when conducting an inquiry or hearing an appeal under this Law, is to be constituted by-- (a) 1 Division member who is an Australian lawyer of at least 7 years' standing or, in the case of medical practitioner proceedings, 1 Division member who is a senior judicial officer; and (b) 2 health practitioners selected for appointment by the Council as occasional members under subsection (1) (b) who are registered in the same health profession as the health practitioner or student the subject of the inquiry or appeal; and (c) 1 lay person (that is, a person who is not registered in the health profession) selected for appointment by the Council as an occasional member under subsection (1) (b) from among a panel of lay persons for the time being nominated by the Minister. … (5A) The Tribunal, when constituted to make an ancillary decision or an interlocutory decision within the meaning of the Civil and Administrative Tribunal Act 2013, is to be constituted by the Tribunal List Manager or the member referred to in subsection (2)(a). …

Is a decision made under s 165L of the National Law an interlocutory decision?

The key issue to be determined is whether, as the Commission contends, a decision made in the exercise of the power conferred by s 165L of the National Law can be properly characterised as an interlocutory decision as defined by the NCAT Act. If the answer to that question is Yes, then as acting List Manager, I can exercise that power and determine the interim order application. If No, that application must be determined by the reconvened Tribunal.
The Commission submits that in introducing s 165L of the National Law, Parliament intended to assist the Tribunal fulfil the objectives and guiding principle of the National Law, namely that in the exercise of its functions under that Act, the protection of the health and safety of the public must be the paramount consideration. In support, the Commission refers to the following extract of the Second Reading Speech: See New South Wales Legislative Council, Parliamentary Debates (Hansard), 9 March 2016 at 7115. 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 support of the proposition that a decision made under s 165L is an interlocutory decision and therefore the power to make that order can be made by the List Manager or their delegate, the Commission cites the decisions of the Tribunal (differently constituted) in Health Care Complaints Commission v Chen [2018] NSWCATOD 58; Health Care Complaints Commission v Safi (No. 3) [2017] NSWCATOD 83; NG v Chinese Medicine Board of Australia [2017] NSWCATOD 36; Taylor v Medical Board of Australia [2018] NSWCATOD 50; Health Care Complaints Commission v Singh [2016] NSWCATOD 85.
The Commission contends that an order made under s 165L is plainly not a final order and therefore is properly characterised as an interlocutory decision within the meaning of the NCAT Act.
Dr Dowla on the other hand, contends that a decision made under s 165L cannot be characterised as an interlocutory decision for the following reasons.
First, par (i) of the definition of interlocutory decision in the NCAT Act - "any other interlocutory issue before the Tribunal" - is to be read ejusdem generis with the common characteristic given in pars (a) to (h1) of the definition.
Second, of the authorities cited by the Commission, Health Care Complaints Commission v Safi (No. 3) is the only decision which concerned the issue of whether the exercise of the power under s 165 L is an interlocutory decision. In any event the power exercised by the Tribunal in Health Care Complaints Commission v Safi (No. 3), was the power to impose conditions on Dr Safi's registration under s 165L(1), not the power to suspend his registration under s 165L(3). Dr Dowla points out that the latter can only be exercised, where the complaint "has been proved".
Third, the context in which s 165L is to be found does not support the interpretation favoured by the Commission. Dr Dowla asserts it would be "odd and surprising", if the Tribunal which found a complaint proved, that is the Tribunal constituted by four members in accordance with s 165B(2), was not required to determine whether orders under s 165L(3) of the National Law, should be made. He argues that it would be odd if a grave finding that a complaint had been proven must be undertaken by a Tribunal constituted by four members but an "even more grave finding" of whether the subject practitioner's registration should be suspended would be left to a single member of a Tribunal who would not necessarily have been a member of the four member Tribunal, which found the complaint proven.
Finally, Dr Dowla argues that the exercise of the power under s 165L is a step in the process of "conducting an inquiry"; a process he contends is required to be undertaken by a Tribunal constituted by four members in accordance with s 165(2).

Consideration

Consideration of whether a decision made under s 165L is an interlocutory decision within the meaning of the NCAT Act begins and ends with the statutory text, which must be considered in its context, including legislative history and extrinsic material: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39]; Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 at [22].
Starting with the text of the relevant provisions, two questions arise for determination. First, whether a decision made under s 165L falls within the definition of "interlocutory decision" for the purposes of the Act. If so, it is a decision that falls within par (i) of that definition: "any other interlocutory issue before the Tribunal." The second question is whether, as asserted by Dr Dowla, the word "Tribunal" in s 165L should be read to mean a Tribunal constituted in accordance with s 165B(2) of National Law.
Dr Dowla asserts that the words "any other interlocutory issue before the Tribunal" should be read down ejusdem generis (of the same sort, kind or nature), but has failed to identify the genus or class, the types of decisions listed in pars (a) to (h1) are said to belong to and the basis for the assertion that a decision made under s 165L falls outside that genus or class. In Statutory Interpretation in Australia by DC Pearce, RS Geddes, (Lexis Nexis, 8th ed, 2014) the authors note (at [4.28]), that the imposition of a limitation on the scope of a general expression by the application of the ejusdem generis principle, presupposes the identification of a group of like matters: if no genus is established, the rule cannot be applied.
In Cody v JH Nelson Pty Ltd [1947] HCA 17; (1947) 74 CLR 629 at 649, Dixon J remarked: "[I]t is wrong to use the rule for an ejusdem generis construction as a piece of abstract or mechanical reasoning. It must be applied not simpliciter [absolutely] but secundum quid [with qualifications]. It should be used as a guide in the process of interpretation which takes into account the whole instrument and the subject matter."
In Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; (2003) 57 NSWLR 113, Spigelman CJ (with whom Handley and Hodgson JJA relevantly agreed) commented at [127] that the reading down of general words by application of the ejusdem generis rule, is rarely justified: "The process of reading down general words in a statute is a frequently recurring issue in statutory interpretation. (See, for example, the authorities I referred to in R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 at 689 [23]- [29].) Application of the ejusdem generis rule is a specific example of this process. The application of this rule, in substance, gives the immediate verbal context determinative weight in the process of construing general words. In my opinion, this is rarely justified. Whether or not general words ought [to] be read down is to be determined by the whole of the relevant context, including other provisions of the statute and the scope and purpose of the statute."
The relevant context here is the NCAT Act and the National Law, its objectives and guiding principles. Applying Dixon J's dicta, it is essential to take into account both the legislative instruments as a whole, and the subject matter of these proceedings. For present purposes, it is necessary to note that the two statutes inter-relate. The NCAT Act is a general law relating to the broad sweep of NCAT's jurisdiction which includes, proceedings brought under the National Law. It would not be expected in a statute such as the NCAT Act, that every type of interlocutory decision that can lawfully be made, would be listed in the definition of "interlocutory decision". Indeed, the list itself is general in scope and does not contain a closed list of categories. Nor does the NCAT Act define the word "interlocutory". It is a word with a general and well-known meaning.
In Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 at [440], Taylor J considered the question of whether a decision is interlocutory and, after reviewing the authorities, said "an order made in the course of an action or suit which does not conclude the rights of the parties inter se, although it may, of course, conclude the fate of the particular application in which it is made, is interlocutory only." See also, Health Care Complaints Commission v Singh at [26].
An interlocutory decision is one made in the course of proceedings that sets certain parameters for the conduct of the parties and the proceedings while they are ongoing but which does not finally determine the rights of the parties or settle the ultimate decision to which the court or tribunal may come to. The decision which I am asked to make in this application is in the nature of a temporary expedient for the protection of the public pending a final determination by the Tribunal which made the Stage 1 decision, as reconstituted. If the ejusdem generis rule applies at all in this instance, which I doubt, the class of decisions it permits in the category covered by the term "any other interlocutory issue before the Tribunal" includes procedural issues that arise in the course of proceedings under legislation in respect of which the Tribunal exercises jurisdiction.
It is convenient then to turn to the National Law. In that legislation, s 165L specifically contemplates the Tribunal making interlocutory orders including orders suspending a health practitioner's registration, providing that the matters listed in s 165L(3) are satisfied. This is the very situation that has arisen in this matter.
It is critical to note that one of the objectives of the National Law is "to provide for the protection of public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered": s 3(2)(a). The National Law also provides that "In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration". (Emphasis added): s 3A. The obligation to have regard to the objectives and guiding principle of the National Law is reinforced by cl 9(1) of sch 5 to the NCAT Act, which states that when exercising its Division functions for the purposes of the National Law, the Tribunal "is under a duty to observe the objectives and principles referred to in sections 3 and 3A of the National Law".
While the National Law requires the Tribunal to be constituted by four persons "when conducting an inquiry or hearing an appeal", sensibly and practically, it does not contemplate that a Tribunal of four persons will be assembled to deal with every ancillary or interlocutory decision. Rather it provides that when the Tribunal "is constituted to make … an interlocutory decision", such matter is be dealt with by a single member, namely, the member of the four person Tribunal who is a "senior judicial officer" (or, where the health practitioner, the subject of the appeal or inquiry is not a medical practitioner, an Australian lawyer of seven years standing) or the Tribunal List Manager. Thus, when conducting an inquiry or hearing an appeal, the Tribunal (or presiding member) will make interlocutory decisions. On other occasions, such as directions hearings, urgent applications during adjournments or in situations as have arisen in this case, when an application is made for interim orders pending the conclusion of an inquiry or appeal, interlocutory decisions are required to be made by either the relevant senior judicial officer (where the matter involved a medical practitioner) or the List Manager.
Contrary to the argument that this seems "surprising", it would be surprising if the National Law were to require that this class of matter must be determined by a Tribunal constituted in accordance with s 165B(2). The inefficiency and expense of such a procedure, were it to be adopted, is self-evident. Section 165B(5A) reposes the power to make interlocutory decisions in either the relevant senior judicial officer or the List Manager. It may be inferred that the legislature contemplated that either would have sufficient competence, experience and grasp on the nature of the relevant proceedings to make appropriate interlocutory orders pending the final determination of the full panel.
The interpretation of the National Law Dr Dowla urges me to adopt - that only a four-person Tribunal constituted in accordance with s 165B(2) can make the orders sought by the Commission - is even less plausible when the paramount consideration of the protection of the public is taken into account. If the National Law was to be interpreted in the awkward way suggested by Dr Dowla, the practical result would be that the Tribunal constituted to conduct the inquiry would have to be reconvened to deal with any interlocutory decision. This would not only be contrary to s 165B(5A) but it would almost inevitably result in delay, perhaps significant delay. That may place the public at risk. Such an interpretation would conflict with the objectives of the National Law and must be rejected.
As to the argument that the exercise of the power under s 165L(3) is a step in the process of "conducting an inquiry", a process required to be undertaken by the Tribunal constituted in accordance with s 165B(2), the simple answer is that s 165B(2), expressly provides for exceptions to the general rule as to the composition of the Tribunal for particular purposes. Sub-section (5A) is such an exception.
For these reasons I conclude that a decision made in exercise of the power conferred by s 165L of the National Law is an interlocutory decision within the meaning of s 4 of the NCAT Act. It follows that that power can be exercised by the List Manager or their delegate.

Should the power to impose further conditions on Dr Dowla's registration be exercised?

In January 2015, with his consent, the Medical Council imposed conditions on Dr Dowla's registration under s 150(1)(b) of the National Law. The conditions were subsequently varied on two occasions. Their main feature of the varied conditions is the requirement that Dr Dowla not consult, treat or perform any procedures on any female patient unless a chaperone approved by the Medical Council is continuously present. In addition the varied conditions impose various reporting obligations on Dr Dowla in respect of changes to the nature and location of his practice, and his relationship with other doctors.
The Commission seeks that the Conditions be varied to require Dr Dowla to: 1. Disclose to any female patient that he has been found guilty of professional misconduct by the Tribunal; 2. Provide to any female patient in the presence of the chaperone, a copy of the decision in Health Care Complaints Commission v Dowla [2018] NSWCATOD 33 (the Tribunal's decision) and the conditions on his registration; 3. Authorise the Medical Council to provide the nominated and approved Chaperone with a copy of the Tribunal's Decision; and 4. Provide a copy of the Tribunal's decision to the Medical Director, principal of Practice or any other "Responsible Senior Officer" in any place where he works.
Dr Dowla consents to all of the proposed additional Conditions, except the requirement to provide female patients with a copy of the Tribunal's decision. Pointing out that the decision is 25 pages in length, he contends that providing patients with a copy of that decision at the commencement of a consultation, is apt to lead to confusion and is not in the patient's best interest. He argues that the objective of "informed consent" by the patient would be better achieved, if the material required to be provided to the patient consisted of: 1. The findings made by the Tribunal. 2. An explanation as to why a chaperone is present. 3. A statement that he intends to appeal the Tribunal's decision and, if and when an appeal is filed, that he has appealed the decision.

Consideration

I have decided it is appropriate that the power to impose further conditions should be exercised and that I should exercise that power. To do otherwise would further delay the consideration of this issue. As Dr Dowla acknowledges, disclosure of the Tribunal's decision serves the public interest and among other things enables those with whom he works to better understand the nature of the conditions imposed on his registration and to enable them to make their own risk assessment of him. Importantly, it enables Dr Dowla's female patients to make an informed decision about whether they consent to being treated by him.
As to the form of orders there is merit in the argument made by Dr Dowla that there is a risk that providing patients with a lengthy decision may serve to confuse rather than inform, especially for patients whose first language is not English and/or are not literate. Of course, there will be other patients who would have no difficulty reading and understanding the Tribunal's decision and ought be given the opportunity to do so. I have decided that the better course would be for female patients to be provided with both a copy of the Tribunal's decisions and a summary of the key findings made by the Tribunal. I have decided to not require Dr Dowla to inform patients that he intends to appeal the Tribunal's decision.

Further directions

On 1 May 2018 I directed that the application made by the Commission for an order suspending Dr Dowla's registration under s 165L be listed for hearing on a date to be fixed by the Registrar. Dr Dowla subsequently raised a further jurisdictional issue. I have decided to vacate Direction 1 made on 1 May 2018 and to list the matter for further directions on 2 June 2018.
Since the decision to postpone the Stage 2 proceedings was made, the Commission has applied for a suspension order under s 165L of the National Law and Dr Dowla has confirmed his intention to appeal the Tribunal's decision. Given these changed circumstances there may be merit in revisiting the decision to postpone the Stage 2 proceedings until after the determination of the appeal.

Orders 1. Pursuant to s 165L of the Health Practitioner Regulation National Law (NSW), the current conditions on Dr Dowla's registration are varied by: 1. Adding after the words "the practitioner's registration" in Condition 5, the words "and the Stage 1 Tribunal decision (Health Care Complaints Commission v Dowla [2018] NSWCATOD 33)". 2. Adding after the words "Practice Conditions" in Condition 6, the words "the Stage 1 Tribunal decision (Health Care Complaints Commission v Dowla [2018] NSWCATOD 33)". 3. Inserting a new condition, Condition 6A in the following terms: 6A Prior to commencing consultation with any female patient, the practitioner must: a) disclose to that patient that he has been found guilty of professional misconduct in the New South Wales Civil and Administrative Tribunal; b) provide to that patient, a hardcopy of the Stage 1 Tribunal decision (Health Care Complaints Commission v Dowla [2018] NSWCATOD 33) and the conditions currently on his registration; c) give the documents described in paragraph (a) and (b) to that patient in the presence of the chaperone and the disclosure must be noted and signed for by the chaperone in the chaperone log next to each patient. 1. Pursuant to s 165L of the Health Practitioner Regulation National Law (NSW), the additional conditions imposed on Dr Dowla's registration on 25 May 2018 are varied by adding to paragraph (b) of Condition 6A after the words "(Health Care Complaints Commission v Dowla [2018] NSWCATOD 33)" the words "and a summary of that Decision in the form as attached to Annexure A to these Conditions". This order will come into effect on 29 June 2018. 2. The parties must use their best endeavours to prepare an agreed summary of the decision in Health Care Complaints Commission v Dowla [2018] NSWCATOD 33, for the purpose of providing to female patients, in compliance with para (b) of Condition 6A. The agreed summary must be filed by 16 June 2018. In the event the parties are unable to reach agreement each party must file their proposed version of the summary by 19 June 2018. The summary must be no more than two pages in length and be written in plain English. 3. The matter is listed for further directions on 1 June 2018 at 10.30 am.

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

Amendments 25 May 2018 - Typographical error in Order 4 - amended date to 1 June 2018 (was 2 June 2018) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 May 2018

Health Care Complaints Commission v Dowla [2018] NSWCATOD 33 Health Care Complaints Commission v Dowla [2018] NSWCATOD 52 Health Care Complaints Commission v Safi (No. 3) [2017] NSWCATOD 83 Health Care Complaints Commission v Singh [2016] NSWCATOD 85. NG v Chinese Medicine Board of Australia [2017] NSWCATOD 36 Taylor v Medical Board of Australia [2018] NSWCATOD 50 Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 Texts Cited: New South Wales Legislative Council, Parliamentary Debates (Hansard), 9 March 2016 at 7115 Statutory Interpretation in Australia by DC Pearce, RS Geddes, (Lexis Nexis, 8th ed, 2014) Category: Consequential orders (other than Costs) Parties: Health Care Complaints Commission (Applicant )

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