Health Care Complaints Commission v Goyer

NCAT Occupational|2019-12-10

Solicitors Health Care Complaints Commission (Applicant) Avant Law (Respondent) File Number(s): 2018/00255746 Publication restriction: On 11 March 2019 an order was made under Cl 7 of Schedule 5D of the Health Practitioner Regulation National Law prohibiting the publication of the name of the patients set out in the schedule to the complaint.

Introduction

After six hearing days, on 12 August 2019 we published reasons for decision in respect of a complaint brought by the Health Care Complaints Commission (HCCC) against Dr Thomas Goyer (the practitioner). We found the practitioner guilty of professional misconduct (as defined in s 139E of the Health Practitioner Regulation National Law (the National Law)).
We listed the matter for directions on 30 August 2019. On that occasion a date was fixed for 10 December 2019 for consideration of appropriate protective orders to be made to conclude these proceedings.
These reasons deal with our consideration of appropriate protective orders to be made in the light of our finding that the practitioner engaged in conduct which constituted professional misconduct. We also deal with the issue of costs of the proceedings.

The Stage 1 proceedings

In our reasons published on 12 August 2019 (which for convenience we will refer to as the Stage 1 proceedings) we recorded at [2]-[3] of our reasons the gravamen of the complaints agitated against the practitioner. We noted: The complaints relate to a period in 2015 to 2017 when the practitioner was the Medical Director of a business operated under the name Medical Weight Loss Institute (MWI). MWI provided its services using a model of "telemedicine". Patients were not seen in person but conferred with MWI staff by telephone or "online". The complaints agitated by the HCCC involve the practitioner's treatment and prescribing for 25 patients who were seeking to lose weight. The practitioner's prescribing included prescriptions for compounded phentermine capsules, diethylpropion capsules, sublingual drops of Human Chorionic Gonadotrophin (hCG) as well as injectable hCG. It is asserted by the HCCC that the practitioner is guilty of both unsatisfactory professional conduct and professional misconduct, as defined in the Health Practitioner Regulation National Law (the National Law). It is also asserted by the HCCC that the practitioner failed to maintain proper clinical records as required under the Health Practitioner Regulation (NSW) Regulation 2010 (repealed) (the regulation).
While noting that the practitioner conceded his conduct in respect of Complaint One was established, and constituted unsatisfactory professional conduct, we rejected the submission made on his behalf by his counsel that the conduct alleged did not amount to professional misconduct.
At [563], [565]-[570] we made the following findings: We find that the practitioner's conduct as particularised in Complaint 1 is of itself sufficiently serious to warrant the suspension or cancellation of the practitioner's registration. The practitioner prescribed without any proper research or other basis for the drugs he prescribed, particularly the compounded medications, one of which had been removed from sale in Europe and Australia because of adverse side effects. He continued to prescribe that drug while supplies were available. … We find that the practitioner's conduct in prescribing compounded stimulant medication for this cohort of particularly vulnerable patients, without a physical examination, was totally inappropriate. Further, his conduct in prescribing was particularly reprehensible in the case of those patients whose own disclosure in nurse consultations revealed medical conditions which contraindicated such prescribing such as Patients I and S who suffered from hypertension. We also find that the practitioner had, and still has, a completely inadequate understanding of what is required by the regulation. His note keeping was, in every case, a standard proforma entry. While a proforma set of questions may provide an appropriate and convenient check list of some standard questions to be asked by a practitioner, in the case of many female patients in these proceedings, it is clear that he did not investigate or at least record any information about contraception or pregnancy. His mere "history confirmed" does not disclose any proper discussion with a patient about the risks and benefits of the medication, or assessment of their previous weight loss attempts. We were not persuaded by the practitioner's reliance on other employees of MWI to "fill the gaps" in his patient care. It was clear from the practitioner's evidence that initially MWI did not employ nurses, and overseas personnel were used in the latter stages of the operation of MWI. Patient S's medical information was provided not to a nurse, but a program manager. The practitioner was not engaged in any oversight of the MWI employees or the advice they provided. Although he initially worked from premises at King's Cross (referred to as Potts Point in the PRU report) used by MWI his evidence was clear that for the majority of the operation of MWI he conducted his role as Medical Director from his own premises at North Sydney and accessed information from a record keeping system kept "in the cloud" that was unreliable. The overall impression from the practitioner's evidence was that his patient consultations were pro-forma and uninformative to the patient. Our conclusions are based on the unchallenged patient statements before us, and the unreliability of the practitioner's evidence. It is noteworthy that he frequently answered questions by saying the circumstances were "too complex" to explain, or that he had no recollection of patients, or events. We also found that the practitioner whilst at MWI paid scant or no regard to his obligation to obtain an informed consent from patients before prescribing stimulant medication. That obligation was not fulfilled by recommending, if he did so, that a patient consult their own general practitioner. As is apparent from our reasoning in respect of this particular, which is repeated for all 25 patients, we did not find the practitioner was absolved by providing an information sheet, if he in fact did so. Patient S's experience was he received a "welcome booklet". The information in that booklet, even if received by every patient, did not fulfil the practitioner's obligations to ensure a proper and real consent from each patient. In summary, we are satisfied that complaint 1 of itself justifies a finding of professional misconduct. Further and in addition, we are satisfied for the reasons given in respect of the particulars we have found established, when considered cumulatively, those established particulars warrant a finding that the practitioner's conduct is so serious that it could lead to the suspension or cancellation of his registration. We are satisfied that complaint 27 is established.

The parties' proposals

In written submissions lodged with the Tribunal on 11 November 2019 and further expanded orally before us on 10 December 2019, Ms Lowson of counsel on behalf of the HCCC seeks that we make an order cancelling the practitioner's registration with immediate effect and an order under s 149C(7) of the National Law that he be prohibited from making an application for review for a period of two years from the date of our orders. The proposed orders also include an order that the practitioner pay the HCCC's costs of the proceedings as agreed and failing agreement as assessed. Finally the HCCC seek an order under s 149C(5) of the National Law as follows: An order pursuant to s 149 (5) that Dr Goyer be prohibited from providing any health service as defined by section 4 of the Health Care Complaints Act 1993 with respect to weight loss and until the practitioner is registered as a health practitioner.
By contrast, in submissions lodged with the Tribunal and dated 25 November 2019, the practitioner's counsel submits appropriate protective orders would be a reprimand and continuation or variation of the conditions imposed by the Medical Council of NSW in July 2016. These conditions limit the practitioner's practice to "minor (non-surgical) cosmetic procedures as defined in the Medical Board of Australia's 'Guideline for registered medical practitioners who perform cosmetic medical and surgical procedures'", to obtain the Medical Council of NSW approval prior to changing the nature or place of his practice and a prohibition on the supply, administration or prescription of Schedule 4D drugs.

Statutory provisions, protective orders and general principles applied

The starting point for consideration in making protective orders is the objectives and guiding principles of the National Law. These objectives and principles inform and guide a tribunal in its decision making. Section 3 and section 3A of the National Law are relevant to the orders we make. Those provisions are as follows: 3 Objectives and guiding principles (1) The object of this Law is to establish a national registration and accreditation scheme for - (a) the regulation of health practitioners; and (b) the registration of students undertaking - (i) programs of study that provide a qualification for registration in a health profession; or (ii) clinical training in a health profession. (2) The objectives of the national registration and accreditation scheme are - (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and (b) to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and (c) to facilitate the provision of high quality education and training of health practitioners; and (d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and (e) to facilitate access to services provided by health practitioners in accordance with the public interest; and (f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners. (3) The guiding principles of the national registration and accreditation scheme are as follows - (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; (b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme; (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. [our emphasis] 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. [our emphasis]
The protective orders a tribunal can make are wide-ranging and include all of the remedies set out in s 149A, s 149B, and s 149C of the National Law. Orders made under s 149C may be either to suspend or cancel a practitioner's registration. The Tribunal is also empowered to make a prohibition order under s 149C(5) and/or to provide that the practitioner may not seek a review under Part 8 of the National Law of the protective order for a specified period of time.
It is relevant, given the contrasting position of the parties, that we briefly refer to the authorities on the purpose and type of protective orders which may be made.
In Health Care Complaints Commission v Do [2014] NSWCA 307 Meagher JA discussed the purpose of protective orders at [35] as follows: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
In Health Care Complaints Commission v Dowla (No 2) [2019] NSWCATOD 156 the Tribunal discussed the nature and impact of a reprimand noting that the reprimand is recorded on a practitioner's registration.
In Chen v Health Care Complaints Commission [2017] NSWCA 186 Basten JA explained as follows: The structure of Part 8 of the Health Practitioner Regulation National Law is inconsistent with any generic limitations on the powers conferred in Pt 8, Div 3. Section 149A(1) confers powers to caution or reprimand, impose conditions on registration, order a practitioner to undergo medical or psychiatric treatment or counselling, or complete an educational course, order the practitioner to report on his or her practice and to seek advice in relation to management of the practice. Section 149B allows for the imposition of a fine where the Tribunal finds the practitioner guilty of unsatisfactory professional conduct or professional misconduct. Section 149C provides, as noted above, for the Tribunal to suspend or cancel the practitioner's registration. The circumstances in which cancellation or suspension is available include findings of incompetence, professional misconduct, conviction rendering the practitioner unfit in the public interest and not being a suitable person. The term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation. [14] The phrase "unsatisfactory professional conduct" is broadly defined by reference to 12 separate categories of conduct relating to professional practice. They include demonstrating competence or care below the standard reasonably expected of a practitioner of an equivalent level of training or experience, [15] making a referral in circumstances where the practitioner has a financial interest in giving that referral without disclosing the interest, [16] overservicing [17] and, finally, any other improper or unethical conduct relating to the practice of the practitioner's profession. [18] There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. … [footnotes omitted]

Further evidence relied on in these proceedings

The written submissions provided to us prior to the Stage 2 hearing highlighted a dispute about the documents sought to be admitted by the HCCC in Stage 2 or "penalty" proceedings. In accordance with the objects in s 3 of the Civil and Administrative Tribunal Act 2013 (NSW) the Presiding Member, after affording the practitioner's counsel the opportunity to make further submissions, made rulings of admissibility of documents sought to be relied on by the HCCC and indicated that the reasons for those rulings would be included in these reasons.
We commence our discussion of this issue by noting, as submitted by Ms Mathur, counsel for the practitioner, that when the hearing commenced the practitioner did not seek a two stage hearing. That concession was made on the basis that the practitioner had made substantial admissions in respect of Complaint One which dealt with his inappropriate prescribing namely that the conduct constituted unsatisfactory professional conduct. He did not admit his conduct was improper or unethical (the particulars of the complaint being alleged to be relevant to both s 139B(1)(a) and s 139B(1)(l) of the National Law). Ms Mathur submitted the practitioner had agreed to a single hearing at an earlier directions hearing on the basis that the HCCC, as a model litigant before the Tribunal, had disclosed all material on which it sought to rely.
The position adopted by the practitioner's counsel changed when Ms Lowson of counsel, in the course of cross-examination of the practitioner sought to tender various documents, not included in the HCCC admitted documents. The documents included the judgment of North J in the Federal Court in Australian Competition and Consumer Commission v ACN 117 372 915 Pty Limited (in liq) (formerly Advanced Medical Institute Pty Limited) [2015] FCA 368 and various company searches. This resulted in an application on day 5 of the hearing by the practitioner for a two stage hearing. The application was not opposed by the HCCC. Ms Lowson made it plain that the judgment of the Federal Court was relied on, not to bolster the claims under s 139B(1)(a), but to support the making of protective orders [transcript 15 March 2019 p 28]. She conceded that cross-examination on the documents on 15 March 2019 could cause procedural unfairness to the practitioner [transcript 15 March 2019 p 31] by influencing our consideration of the complaints.
It is also noteworthy to record that only after the practitioner had been extensively cross-examined on day five of the hearing that the HCCC withdrew all particulars asserted to rely on s 139B(1)(l) and relied solely on s 139B(1)(a) of the National Law.

The authorities

In Lucire v Health Care Complaints Commission [2011] NSWCA 99 in very unusual circumstances, the Court of Appeal found there was a lack of procedural fairness when a medical practitioner was denied the opportunity to present evidence and make submissions on the protective orders to be made. This occurred in circumstances of the imminent retirement of the Deputy Chairperson (a District Court Judge) of the now repealed Medical Tribunal of NSW. After oral reasons were delivered in respect of the particulars of the complaint, the Deputy Chairperson proceeded the following day to make protective orders without the parties having the opportunity to provide further evidence or make submissions as to appropriate orders.
Basten JA at [54] discussed the right of parties to present further evidence and to make submissions as follows: Following delivery of the judgment, there was discussion between the Tribunal and counsel as to what steps should follow. It may have been thought when the Tribunal originally adjourned (on 13 August 2010) that the outstanding steps would involve the tender of documentary material and the making of submissions in relation to the orders which would be considered appropriate in the event of any adverse findings. The Commission had put the complaint before the Tribunal on the basis that some particulars were themselves sufficiently serious to constitute professional misconduct, whereas others, taken individually might not be so characterised, but taken cumulatively could constitute professional misconduct. Accordingly, the reasons delivered on 24 August 2010 made no finding in respect of the more serious complaint of professional misconduct. It was, to a significant extent, that matter which caused the subsequent proceeding to miscarry. Both parties wished to present evidence and make submissions in relation to the appropriate protective orders: each appears to have accepted (the Commission doing so expressly) that it would be inappropriate to tender material relevant only to the orders, before the Tribunal had reached a conclusion as to professional misconduct. That reticence on the part of the Commission was entirely appropriate: because professional misconduct is defined, in part, to be unsatisfactory professional conduct of a sufficiently serious nature to justify suspension of the practitioner from practising medicine, or the removal of her name from the Register, there was a risk that to present material relevant only to the appropriate orders might result in contamination of findings with respect to the proper characterisation of the conduct: see Karalasingham at [67]. [our emphasis]
The practitioner's submissions refer to the model litigant policy, a legal service direction issued by the Commonwealth Attorney-General pursuant to s 55ZF of the Judiciary Act 1903 (Cth). The policy, which is Appendix A to the Legal Service Direction 2017, requires that the Commonwealth and its agencies act honestly and fairly in matters including litigation. The appendix does not contain any direct reference to disclosure of documents. Another document was tendered in the proceedings headed "Model Litigant Policy for Civil Litigation" and became Ex "O". This document refers to the provision of legal services in NSW. We find this is the document to which we should have regard, not the Commonwealth policy document. However, in a number of respects, the NSW policy is, unsurprisingly, similar to the Commonwealth document. In paragraph 3.2(d) reference is made to the principles underlying the Civil Procedure Act 2005 (NSW) to facilitate the just, quick and cheap resolution of the real issues in civil proceedings. We note the identical objects in the Civil and Administrative Tribunal Act 2013 (NSW). Having recorded in 3.2(e) that agencies should avoid litigation wherever possible, the paragraph goes on to stress in order to keep costs at a minimum, agencies should "not require the other party to prove a matter which the State or agency knows to be true".
The practitioner's submission refers to a number of common law authorities including Griffiths CJ's comments about the obligations of the Crown in litigation in Melbourne Steamship Co Limited v Moorehead (1912) 15 CLR 333. We pause to note that reference is made to his decision in the NSW Model Litigant Guidelines. Griffiths CJ compellingly explained: I am sometimes inclined to think that in some parts - not all - of the Commonwealth, the old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects, which I learned a very long time ago to regard as elementary, is either not known or thought out of date. I should be glad to think that I am mistaken.
The practitioner's submissions also refer to the remarks of Finn J in Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 196.

Evidence admitted by consent

The practitioner did not object to the material in Tab 3 of the folder of material sought to be tendered for the determination of appropriate protective orders. That material comprised of records of NSW Health dating back to 2007 when the practitioner was an intern. Similar material was before us at the Stage 1 hearing. We admitted that material by consent.

Contested evidence

The HCCC sought to rely on the following documents: 1. The judgment of North J in Advanced Medical Institute. 2. Transcript of proceedings in the Local Court, Downing Centre dated 21 March 2017 Thomas Clement Goyer v Roads and Maritime Services.
A number of other documents, submitted by the HCCC in its Stage 2 volume of documents filed on 14 November 2016 but ultimately not relied on, were tendered by the practitioner's counsel in her application in respect of costs. These documents included: 1. Non evidence based warning published by the HCCC on 13 March 2017; 2. Correspondence between NSW Health and the then NSW Medical Board in 2007; 3. R v Thomas Clement Goyer - advice of court results 28 September 2016; 4. R v Thomas Clement Goyer - facts sheet - 9 June 2016; 5. Extract Crimes (Sentencing Procedure) Act 1999 (NSW); 6. Letter from Ms Lorriane Yi, AHPRA to Ms J Dinihan, HCCC dated 17 April 2019; 7. ASIC search - Dr Thomas Goyer; 8. ASIC extract Alpha Male Clinic Pty Ltd; 9. ASIC extract The Wellness Institute Pty Ltd; 10. ASIC extract TCG Investments Pty Ltd; 11. ASIC extract Dragon Horse Futures Pty Ltd; 12. ASIC extract Caladan Enterprises Pty Ltd.
For the reasons that follow, the Presiding Member admitted into evidence in respect of the Stage 2 proceedings the documents set out above in (1) and (2) in [25]. Documents (1) to (12) of [26] were admitted in respect of the contested costs application.

Consideration - admissibility of documents Stage 2

In reaching her determination on admissibility of contested material the Presiding Member took into account that under Cl 2 of Schedule 5D of the National Law, the Tribunal is not bound to observe the rules of law governing the admission of evidence, but may inform itself of any matter in the way it thinks fit. The Presiding Member also had regard to the overarching principles of natural justice and procedural fairness in the hearing of disciplinary proceedings.
The Presiding Member further had regard to Clause 5(1) of Schedule 5D. That clause provides as follows: 5 Evidence of other proceedings [NSW] (1) A Committee or the Tribunal may receive and admit on production any of the following, as evidence in any proceedings - (a) the judgment and findings of a court (whether civil or criminal and whether or not of this jurisdiction); (b) the verdict or findings of a jury of a court (whether civil or criminal and whether or not of this jurisdiction); (c) the judgment and findings of a tribunal (whether or not of this jurisdiction); (d) a finding, decision or determination of a Professional Standards Committee established under this Law or a corresponding prior Act; (e) a decision of a performance and professional standards panel established under the Health Practitioner Regulation National Law; (f) a certificate of the conviction of or the making of a criminal finding in respect of any person; (g) a transcript of the depositions or of shorthand notes, duly certified by the Registrar or clerk of the court or tribunal as correct, of the evidence of witnesses taken in a court or tribunal referred to in paragraphs (a)-(c); where the Committee or the Tribunal is of the opinion that the judgment, findings, verdict, certificate, decision, determination or evidence is relevant to the proceedings.
It is not in dispute that on 15 March 2019 Ms Lowson sought to cross-examine the practitioner about the auditor's report prepared after an audit of the practitioner's medical records pursuant to the conditions on his registration (tendered by the practitioner for the Stage 2 hearing), the practitioner's disclosures to AHPRA when renewing his registration in 2016, and the judgment in Advanced Medical Institute. At that point in the hearing, after objection was raised by Ms Mathur about non-disclosure by the HCCC of those documents, on the basis the matter was to be determined in a single hearing and that this evidence could prejudice the Tribunal's findings on the complaint, a request for a Stage 2 hearing was made and granted. Such a course was actively adopted by counsel for the HCCC (see transcript 15 March 2019).
Ms Lowson made it very clear during the Stage 1 hearing that the documents later sought to be adduced at the commencement of Stage 2, were directed only to appropriate protective orders and not to bolster or support findings of unsatisfactory professional conduct or professional misconduct.
The Presiding Member also took into account in admitting both documents relied on by the HCCC for the Stage 2 proceedings that first, the practitioner was well aware in March 2019 that the HCCC intended to rely on North J's judgment, secondly that he was well aware of the audit results (which he now relies on for Stage 2), and thirdly he is well aware of his speeding conviction. Not only was the practitioner well aware of each document but he was able to obtain advice from his lawyers in the period of almost one month since the material was filed and served in the Tribunal on 14 November 2019 and even earlier as a result of the attempted cross-examination by Ms Lowson on 15 March 2019. In these circumstances the Presiding Member determined that there was no procedural unfairness to the practitioner in the documents being admitted for the sole purpose of the determination of appropriate protective orders. The probative value of the documents outweighed any prejudice occasioned to the practitioner. The Presiding Member was further fortified in her decision to admit the documents because she admitted into evidence on behalf of the practitioner correspondence between the practitioner and the Medical Council of NSW relevant to the Local Court proceedings.
We later re-visit the implications of the documents tendered by the practitioner to support a submission of "disentitling conduct" by the HCCC when dealing with the issue of costs.

The HCCC material

We have earlier in these reasons set out the evidence relied on by the HCCC in support of the orders sought including the order for cancellation of the practitioner's registration. We will refer to this material in greater detail below when considering appropriate protective orders.

The practitioner's material

The practitioner relies on his statement dated 29 October 2019. In that statement he concedes that a finding of professional misconduct was "the appropriate outcome" and offers "my sincere apology to those patients who were dissatisfied with the provision of services by MWI and my role at MWI". He notes that he is "thankful" that no patient suffered harm so far as he is aware and goes on to state "but I understand my approach at MWI was poor practice and accept overall the criticisms made about it".
The practitioner notes that his present medical practice "is solely in cosmetic medicine (non surgical) and skin care. My patients are confined to those seeking cosmetic and skin care treatment". The practitioner asserts he has not had any complaints about his cosmetic practice and says "I believe I provide a very satisfactory standard of service". He notes his compliance with the conditions imposed by the Medical Council of NSW in July 2016.
At para 6 of his statement the practitioner asserts: My interest is in cosmetic, wellness and preventative medicine but I do not provide any other kind of medical advice other than in general skin care and minor cosmetic procedures. I have no intention of practising in general practice medicine. I am not a fellow of the RACGP but I keep up with basic training and skills as required.
The practitioner says he has taken a number of steps to improve his record keeping and he attaches a report dated 29 March 2018 by Dr Louise King. We pause to note that Dr King conducted two audits of the practitioner's record keeping. The practitioner did not provide a copy of Dr King's first report. We discuss the tendered report below.
The practitioner also provided a copy of his ADO service records (army) from 2003. He also provided references from persons who had been provided with an "abridged" copy of our Stage 1 reasons with advice of availability of the full text of the decision on NSW Caselaw. No referee was required for cross-examination. He continued to rely on a reference from Dr Neal Hamilton dated 27 January 2019 tendered in the Stage 1 proceedings.
Dr Hamilton states that he has known the practitioner for ten years having first met the practitioner when he came to work at his clinic, Concept Cosmetic Medicine. He refers to the practitioner being a keen trainee because of his interest in "cosmetic dermatology". He also says: Dr Goyer has always had a passion for preventative medicine and would often talk to me about such topics. Many cosmetic practitioners do offer preventative medicine services with the clinics and so it was not usual for Tom to be involved in this area.
Dr Hamilton goes on to explain his view that the practitioner "takes responsibility for everything that has happened" and has "also changed his outlook on preventative medicine". Dr Hamilton also states: Several years ago he decided to completely stop practising any preventative medicine even though he does like to keep up academic reading about the topic.
Dr Hamilton expresses the view that the practitioner will be a safe practitioner in the area of non-surgical cosmetic medicine. Dr Hamiton says he would be happy to provide mentorship for the practitioner.
Dr Hamilton's reference was provided prior to the publication of our Stage 1 reasons. We do take into account that Dr Hamilton was not required for cross-examination. However, no updating reference was provided by him for the Stage 2 proceedings. We must in those circumstances give more limited weight to the views he expresses about the practitioner's insight.
The first reference relied on in the practitioner's Stage 2 documentation is from a Ms Lee Bradley. The reference is undated and does not provide a contact address for the referee. Ms Bradley says she knows the practitioner as a patient, and in a professional personal capacity. Ms Bradley says she has worked in the cosmetic industry for over 25 years. She explains that she has never felt pushed or pressured into a cosmetic treatment by the practitioner and that she has been happy with his treatment. She says "He seems highly regarded within the cosmetic industry as someone who is both knowledgeable and genuinely decent". Ms Bradley does not refer to reading the abridged copy of our decision or accessing the full decision via NSW Caselaw.
The practitioner also provided a reference from Farshad Kazazi, CEO and Founder of Eden Laser Clinics Group dated 25 October 2019. We note at [19] of our Stage 1 reasons we recorded that the practitioner worked at Eden Laser Clinics between 2010 and 2017. Mr Kazazi explains that he has known the practitioner professionally and personally for over ten years, and that the practitioner was the first medical director of "laser clinics Australia". He refers to his staff and himself being "immediately impressed with his [the practitioner's] level of organisation, medical knowledge and leadership ability that allowed us from an early stage to succeed in a very competitive industry". Mr Zazazi further explains: In regard to his clinical skills, patients at the clinics were always very satisfied with Dr Goyer and requested him frequently. Apart from general training sessions with staff Dr Goyer also held numerous cosmetic training sessions with both nurses and doctors. All medical staff who attended these training sessions were very impressed by him. Over the last 11 years I would have dealt with countless doctors within the cosmetic space and Tom is right up there with the best in terms of his professional manner and his comprehensive industry knowledge. This is why upon starting my new business I requested Dr Goyer to join me to help me both with clinical and logistical operations.
As with Ms Bradley, Mr Zazazi does not refer to reading the abridged version of or reasons or the decision on NSW Caselaw.
The practitioner relies on a third referee, Ms Collen South. Her reference is undated and no address is supplied although she does provide a mobile telephone number where she says she may be contacted. It is electronically signed. Ms South says she is a "Practice Manager" and has so acted for over a decade and "so have extensive experience in the industry". We infer Ms South's work as a practice manager is in the cosmetic industry not general practice or in other medical practices. She refers to having worked with the practitioner at Concept Cosmetic Medicine in Drummoyne on the second occasion the practitioner worked at that business. We note at [16] of our Stage 1 reasons we recorded that the practitioner worked at Concept Cosmetic Practices between 2009 and 2015. Ms South refers to her awareness of the matter before the Tribunal, but not to reading the abridged decision or report on NSW Caselaw.
Like Mr Zazazi, Ms South refers to her assessment of the practitioner's professionalism, technical skill, expertise and management of patients and opines "Dr Goyer would be, …one of the best cosmetic practitioners". She also says "I am aware that he has a very good reputation as a cosmetic proceduralist in the industry and with patients".
Ms South states: I have visited his clinic twice this year in order to conduct informal audits on his logistic systems and processes and in general I provide advice on practice management organisation and compliance. Upon assessment I found the processes he uses to be sound and of good quality. Some minor changes were suggested which mostly related to administrative matters. Dr Goyer is always prepared to take advice and to put in place whatever measures he can to produce a system for his patients and his staff that makes the delivery of services smooth and trouble free.
The HCCC rely on comments made by North J in Advanced Medical Institute. His Honour made a number of adverse comments about the practitioner in his reasons for decision published in 2015 and at [376]-[379] commented on evidence given in 2013 or 2014. His Honour said: Dr Goyer qualified as a doctor at the University of Queensland in 2004. He had worked for AMI or NRM since 2008. In 2008 and 2009 he worked from the premises of AMI. Since 2010 he worked from his own premises four days a week. On the other day he worked in a clinic in the field of cosmetic, anti-aging, and wellness medicine. Unlike Dr Berry, Dr Goyer's experience was relatively short and very narrow. Further, unlike Dr Berry, Dr Goyer displayed a limited degree of care or concern for his patients. For instance, in explaining his work for AMI he said in cross-examination: [A]s a medical practitioner dealing in something which is not going to be a life threatening situation, no one dies of premature ejaculation. No one dies of erectile dysfunction. So this is a very different paradigm of medicine. What we're dealing with here is lifestyle optimisation. Now, when it comes to lifestyle optimisation, we really have to adjust the way that we speak to people, as I do in cosmetic medicine. No one needs botox. No one dies of a wrinkle. So when I'm speaking about this medication to treat erectile dysfunction, we suggest medications. But we never tell people they will need it as I might if I were speaking to someone in emergency, who would have a heart attack, and I was telling them they would need a particular medication or they would die. [TS 2320 - 2321] He gave his evidence in an arrogant, obstructive, uncooperative and defensive way. When asked about his experience as a doctor, he was asked whether he practised as a GP outside of AMI. He replied "No. God, no. ... Well, sorry, it's a terrible job. I shouldn't have said that, but no" [TS 2299]. He claimed to be "one of the most experienced clinicians, not just in Australia, but in the world, of speaking to people with these concerns" [TS 2360]. Yet his own colleagues at AMI, Dr Berry, Dr Condoleon, Dr Lonergan and Dr Vandeleur all had significantly more experience with AMI than he did. That is to say nothing of their much greater experience as doctors than Dr Goyer. Early in his evidence Dr Goyer resisted giving a simple answer to junior counsel for the ACCC. I explained the Court process and how re-examination allowed for elaboration on some answers if necessary. Shortly afterwards he wound into a simple answer about the recordings of consultations an observation that the ACCC had "stolen" the recordings of the consultations from AMI. In fact, the recordings were obtained by the ACCC pursuant to a search warrant. The Court was adjourned so that counsel for the respondents could explain to Dr Goyer the need for decorum. On resumption, Dr Goyer appropriately apologised and explained, "I am not able to be comfortable ... my legs are shaking under the table here. I am just trying to settle and I will promise to be more civil." [TS 2311] A consideration of his oral evidence as a whole suggests that his discomfort in the witness box arose from a recognition that his practices were not readily defensible. Dr Goyer understood that the job at AMI was not particularly demanding for a doctor because "no one dies of erectile dysfunction" and it was not as "terrible" as it would be to practice as a GP. The work was repetitious but paid him $1000 a day. Dr Goyer did not present as a doctor committed to patient care. He was involved in eight consultations in issue in this proceeding.
Counsel for the HCCC referred to the findings of North J at [366] noting that of the 13 doctors who worked at AMI only four including the practitioner gave evidence in the proceedings. After discussing whether names of practitioners involved in proceedings should not be identified his Honour said: There is a distinction to be drawn between the doctors who gave evidence and who were thus given an opportunity to explain their conduct, and the doctors who did not give evidence and thus did not explain their conduct.
It was acknowledged by counsel for the HCCC that there is no evidence to support a finding that the practitioner had read North J's reasons for decision. However, it was asserted the decision was relevant to our assessment of the practitioner's state of knowledge and the deficiencies he exhibited in his practice.
The HCCC also rely on the transcript of the proceedings before the Local Court when the practitioner was present in court and sought in submissions made to the Magistrate to reduce his driving suspension from three months to two months. His legal representative made submissions that the practitioner "works with various compounding pharmacists to produce specific treatments for pre-cancerous cells in which he has developed an expertise". Later his legal representative submitted to the presiding Magistrate as follows: HIS HONOUR: Or for a period of suspension, he could stay at the clinic until the clinic closes, couldn't he? EIKSTEIN: That would cause a great deal of inconvenience and possibly harm to the patients who are booked for the next two or three months in the clinic and it would adversely affect, your Honour, some of the follow ups. It would mean that his compounding pharmacy where he works with pharmacies in Cronulla, Narwee and Bondi Junction would also cease [transcript 21 March 2017]
The HCCC provided a copy of this transcript and other documents to the Medical Council of NSW (the Council). On 3 December 2019 the Council wrote to the practitioner and informed him as follows: In order to determine your compliance with practice condition 1 please outline and describe the nature of your practice as detailed above, including types of treatments, procedures, any consultations and other clinical or non-clinical work you undertake as a medical practitioner.
On 6 December 2019 the practitioner provided a response to the Council. He asserts he has complied with the conditions on his registration. He stated: My work involves Botox and filler injections, I only work out of the North Sydney Clinic, currently, and provide non surgical treatments as per the guidelines. I do not do any other medical work. The treatments available at the clinic include skin treatments, laser and other treatments. The products used are commercially available and not prescribed substances. Skin care lines are compounded (as are all skin care products) but I did not formulate them. They are ordered and bought directly from suppliers of cosmetic products e.g. Rationale and Osmosis. The benefits of treating skin with vitamins like and C, B3 niacinamide and various other ingredients commonly found in such products, and also laser treatment, is that it improves aesthetics and also aids against sun damage and skin cancer. My practice is solely concerned with non surgical cosmetics. In March 2017 I attended the Local Court in Downing Centre in relation to a traffic (speeding) offence. I met my solicitor at court that morning and gave verbal instructions just prior to going into court about my practice. I did not give him any written instructions. I was sitting in the back of the court room when he addressed the magistrate (and was actually outside for some of the time). I did not inform him that I was working towards a cancer cure or anything like that, as it is not the case at all. I do not recall exactly what I said but would have told him about the intrinsic benefits of skin renewal, and improved immune system that can help prevent the formation of cancerous cells in the skin and so on. I believe that my solicitor misunderstood what I told him in answer to his questions about my work, practice and the health benefits of my work apart from aesthetic improvements. I think he took a bit of poetic licence in describing my work and travel schedules so that he could persuade the magistrate not to cancel my driving license.
We discuss the implications of this reply below.

Consideration

It is useful to "set the scene" for our conclusions about appropriate protective orders by referring to our findings in our Stage 1 reasons. We found that the practitioner's admissions about his prescribing of peptides to be an appropriate admission. That prescribing was a serious and significant departure from appropriate standards involving over 400 prescriptions. The practitioner's actions were subject of strong condemnation by the HCCC expert, Professor Wittert. The gravamen of the prescribing complaint as particularised for the patients the subject of the complaint was addressed by us at [565] of our reasons as follows: We find that the practitioner's conduct in prescribing compounded stimulant medication for this cohort of particularly vulnerable patients, without a physical examination, was totally inappropriate. Further, his conduct in prescribing was particularly reprehensible in the case of those patients whose own disclosure in nurse consultations revealed medical conditions which contraindicated such prescribing such as Patients I and S who suffered from hypertension.
We also found that the practitioner "had, and still has, a completely inadequate understanding of the regulation", a reference to the relevant regulations in respect of record keeping. We found the practitioner's evidence to be unreliable (para 568 of the Stage 1 reasons). In fairness to the practitioner, we note that he conceded his conduct in prescribing the peptides constituted unsatisfactory professional conduct under s 139B(1)(a). He also conceded the particular in respect of each patient, that he failed to carry out a physical examination before prescribing.
Ms Mathur submits that we should take into account the time which has elapsed since the matters the subject of the complaint, the practitioner's compliance with the conditions on his registration, and the fact no complaints have been made about the practitioner's cosmetic practice.
We note that in his statement the practitioner refers at para 6 to the fact he is not "a fellow of the RACGP but I keep up with basic training and skills as required". We observe the only continuing professional development of a quasi-general nature in which the practitioner engaged in 2019 was "medical emergencies in cosmetic medicine Monash University Public Health Department, Melbourne Vic". In his statement provided for the Stage 1 hearing the practitioner set out his continuing professional development in 2018, and in 2017. None of the training completed in 2018 was for general medical topics but was limited solely to cosmetic medicine including "practice visit and training" for fractionated resurfacing, advanced fillers and thread lifting each by Dr Neal Hamilton.
The training completed in 2017 included an Immediate Life Support Course. We note that course was a requirement imposed by the Council in condition 6 of the conditions imposed on the practitioner's registration in force between 26 July 2016 and 13 August 2016. We also note the practitioner completed a Royal Australian College of General Practitioner's course Module 1 Premalignant and malignant non melanoma skin cancer course, but that course too was pursuant to condition 7 of the conditions imposed by the Council. Other than the two courses mandated under the conditions on his registration, the practitioner disclosed no evidence that indicates to us he has or will keep up with general medical knowledge. Given the practitioner's general poor academic and performance record as an intern, and his lack of any general medicine experience, we have significant concerns about his ability to practise medicine except in a very limited sphere of non-surgical cosmetic medicine.
However, we have significant concerns about the practitioner's ability to practice safely and to limit his practice to non-surgical cosmetic procedures. There was a paucity of evidence adduced by the practitioner about just what he does in his current practice as set out in his reply of 6 December 2019 to the Council. We are disturbed by the assertion made by his legal representative in the Local Court in relation to "skin treatment" for pre-cancerous cells and his association with compounding pharmacies. The report to the Council that products he uses are proprietary products bought from suppliers is completely inconsistent with the submissions made to the Magistrate about compounding pharmacies in named suburbs.
Even if the submissions made to the Magistrate on this topic were inaccurate or exaggerated, it is clear to us that the practitioner was content to instruct his legal representative to make submissions to reduce the period of suspension imposed on his licence. We were unable to accept his statement that he was outside the court at some time while his legal representative was addressing the Magistrate. That evidence is inconsistent with the transcript. The practitioner attempting to shift blame for inaccurate statements to his legal representative goes fundamentally to the integrity of this practitioner. It casts significant doubt about his truthfulness and integrity and thus the extent to which we could be satisfied that his professed insight and acceptance of his wrongful conduct is genuine.
We find that first the practitioner's expressed insight and remorse for his conduct at MWI must be tempered by our assessment of his lack of credibility. Our findings are corroborated by the cavalier attitude expressed in his evidence before the Federal Court of Australia, and submissions made on his instructions to a Local Court Magistrate on sentencing for a speeding offence. The practitioner, who was present throughout the Stage 2 hearing, declined to make himself available for cross-examination. We draw the inference that further cross-examination of the practitioner would not have assisted his case.
The practitioner's mode of practice at MWI disclosed that he failed to appreciate the inherently unsatisfactory process of prescribing without physical examination of a patient notwithstanding his exposure to the practice at Advanced Medical Institute. It is telling that the model adopted at MWI bore remarkable similarities to the Advanced Medical Institute model. This is significant given the practitioner was subject to cross-examination in the Federal Court, and could have not been left in any doubt that the tele-medicine model adopted was seriously challenged in those proceedings.
It was of concern to us that, at the second audit of the practitioner's records, he failed to provide his prescription pad, being on his evidence, the only record of all of his prescribing. It is inherently unbelievable that his prescription pad was "at home" not at his practice. Although the auditor made a recommendation that no further audits were necessary, we found it of concern that the practitioner appeared to absolve himself from compliance with the regulations on the basis that he is only carrying out non-cosmetic procedures. Cosmetic procedures, including botox injections, can and do from time to time have adverse outcomes. Another practitioner taking over the care of a patient in reliance on the practitioner's records would encounter difficulties knowing exactly what had been prescribed for the patient and why the prescription was chosen. This appears to us to be particularly relevant for any patient being treated for a "pre-cancerous" skin condition or, in the practitioner's own words, with products and laser treatment that "also aids against sun damage and skin cancer".
We find we can place little weight on the practitioner's referees. None of the referees referred to having read our Stage 1 reasons, although they were supplied with an "abridged" version of those reasons. Each reference is from a person involved in the cosmetic industry including one who is a patient, and another with whom the practitioner had a commercial arrangement. With the exception of Dr Neal Hamilton, no references were provided by any doctor who has worked with the practitioner or from any other independent person.
We have carefully considered whether appropriate protective orders would be a reprimand and continuation of the present conditions. Unless the practitioner engaged in further general medical studies or continuing professional development which, on the evidence before us, we find he is unlikely to do, conditions limiting his practice would have to stay in place indefinitely and would require some form of monitoring. While such conditions, if capable of being monitored effectively, may to a significant extent, alleviate concerns about the safety of the public, we do not find that such orders properly reflect the seriousness of the practitioner's conduct, his lack of genuine remorse for the patients he purported to treat at MWI, or act as a deterrent to other practitioners. Further, we are not satisfied, that such orders would uphold the reputation and standing of the profession.
We turn then to consider whether the issues of deterrence and the integrity of the profession can be satisfied with a reprimand and an order suspending the practitioner's registration. We have weighed the fact that since 2016 when conditions were imposed on his registration no complaints have been made to the Council or the HCCC about the practitioner and he appears to have complied with the conditions imposed by the Council. He is unable to prescribe Schedule 4D drugs. However, on careful weighing of the evidence we have determined such an order would not be appropriate. We do not think a suspension and the imposition of conditions on expiration of the suspension would be adequate to properly protect the public given the practitioner's level of training and demonstrated lack of clinical skills and judgment. He would automatically be entitled to resume practice at the end of the suspension with no testing of any insight gained into his past conduct. Further, as explained above, conditions capable of being monitored would be required on a long term basis. Of more weight however is the need to uphold the integrity of the profession. We find that can only properly occur if the practitioner's registration is cancelled.
We note that the HCCC seek a period of two years before which the practitioner may apply for a re-instatement order. Ms Mathur submits the choice of two years is arbitrary. In Chen v Health Care Complaints Commission Payne JA at [88] observed: The Tribunal was permitted by s 149C(7) to identify a period of a time during which a re-registration application could not be made. Doing so indicated the seriousness, from the Tribunal's perspective, of the conduct. A practitioner wishing to challenge that period may do so by way of appeal. Contrary to the appellant's submission, a time fixed under s 149C(7) does not necessarily mean that the Tribunal has formed a view that things will have changed by the end of the period which has been fixed. The Tribunal is permitted by s 149C(7) to make clear in its orders the seriousness with which it views the conduct of the practitioner reflected in the complaints which have been proven. Such an order plays a part in the general deterrence reflected by the order.
We are satisfied that the general deterrent aspect of an order made under s 149C(7) can be satisfied by imposing a period of one year before the practitioner can apply for a re-instatement order. That period will afford the practitioner the opportunity to update his medical knowledge, record keeping skills by undertaking an appropriate course or courses, and more importantly to reflect upon the conduct matters which have been subject of adverse criticism by us. We consider the practitioner would benefit from undertaking and completing an ethics course.

A prohibition order

At the commencement of our reasons we set out the prohibition order sought by the HCCC. Mr Mathur, on behalf of the practitioner opposes the making of such an order on the basis the proposed wording is so vague it may be unenforceable, or that the practitioner could not know what he is prohibited from providing whilst unregistered.
Section 149C(5) of the National Law and the notation thereto provides as follows: (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following - (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. Note. Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order.
Section 5, the definition section of the National Law records that the definition of a prohibition order does not apply in New South Wales. However, s 138 which is found in Part 8 of National Law, defines a prohibition order as "has the meaning given by section 149C(5)". A "health service" is defined as "has the meaning given by the Health Care Complaints Act 1993". The definition in that Act is as follows: health service includes the following services, whether provided as public or private services: (a) medical, hospital, nursing and midwifery services, (b) dental services, (c) mental health services, (d) pharmaceutical services, (e) ambulance services, (f) community health services, (g) health education services, (h) welfare services necessary to implement any services referred to in paragraphs (a)-(g), (i) services provided in connection with Aboriginal and Torres Strait Islander health practices and medical radiation practices, (j) Chinese medicine, chiropractic, occupational therapy, optometry, osteopathy, physiotherapy, podiatry and psychology services, (j1) optical dispensing, dietitian, massage therapy, naturopathy, acupuncture, speech therapy, audiology and audiometry services, (k) services provided in other alternative health care fields, (k1) forensic pathology services, (l) a service prescribed by the regulations as a health service for the purposes of this Act.
In Health Care Complaints Commission v Ng [2015] NSWCATOD 139 the Tribunal, in considering the relevant principles to be applied in making a prohibition order, said: The HCCC also seeks a prohibition order pursuant to s 149C(5) of the National Law to prevent Dr Ng from providing any health service that involves the physical examination or physical treatment of female patients for the period of his deregistration. The HCCC submits that the "substantial risk to the health of members of the public test" that is a precondition to the making of such an order is a risk that is real or apparent on the evidence presented not a risk that is without substance, or which is fancy or speculative: Health Care Complaints Commission v Taylor [2010] NSWNT 10; Health Care Complaints Commission v Sharah [2015] NSWCATOD 99.
In Ng the Tribunal adopted the reasoning of the former Medical Tribunal of NSW in Health Care Complaints Commission v Taylor [2010] NSWMT 10. We agree with the construction given to s 149C(5) of the National Law in that decision, which discussed a similar provision in the Medical Practice Act 1992 (NSW) (repealed). We decline to make a prohibition order on two bases. First, the order as sought is in our view so wide as to be incapable of proper construction and thus unenforceable, and secondly on the evidence before us, we are not satisfied that there is a substantial risk to the public that is real or apparent that the practitioner will seek to engage in counselling or other similar advice to persons about weight loss. We note he cannot prescribe medication under Schedule 4D. Accordingly, we decline to make the prohibition order as sought.

Relevant principles

The relevant principles in relation to costs are well known. General principles are discussed by the plurality in the High Court in Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29. The general principles applied in matters under the National Law are well explained in Health Care Complaints Commission v Philipiah [2013] NSWCA 342. See also Oshlack v Richmond River Council [1998] HCA 11. An order for costs is not to punish the practitioner but to compensate the HCCC if appropriate to do so. The power to make a costs order is found in Cl 12 of Schedule 5D of the National law.
The HCCC seeks that we make an order that the practitioner pay all of its the costs of the proceedings. Ms Mathur submits that we should discount a costs order by 30 per cent to reflect "disentitling conduct" on the part of the HCCC. The "disentitling conduct" relied on is "wasted time and resources". The wasted time is explained at para 30 of Ms Mathur's submissions as follows: Although the Commission succeeded in proving the majority of its particulars, that does not equate, in our submission to adding up each particular in a numeric exercise. Looked at in terms of the proposed time allotted to this matter (5 days) which went over for no other reason, in our submission, than the time wasted on Complaints that were withdrawn, and unnecessary legal argument and objections over material sought to be relied on without prior notice - ought result in meaningful reduction in the cost payable to the Commission by the respondent.
Reference is made in Ms Mathur's submission to the practitioner's agreement to a single hearing on both liability and protective orders based on the presumption that the HCCC, as a model litigant, had disclosed or filed and tendered at the commencement of the hearing all evidence. It is submitted that the failure to disclose all relevant documents breached the rules of procedural fairness as the practitioner was precluded from obtaining legal advice on documents sought to be adduced during the practitioner's cross- examination. At para 47 of the submissions, Ms Mathur notes the particulars which were not found established by us. These are further detailed in her further submissions received on 13 December 2019.
In support of this submission, Ms Mathur has provided transcript references to cross-examination of the practitioner which she submits indicates that the HCCC were in possession of relevant documents such as the practitioner's criminal conviction for possession of a prohibited drug in 2016, company searches relevant to corporations in which he is listed as director or shareholder, as well as the Federal Court decision and the Local Court transcript.
Ms Lowson strongly objected to the submission the HCCC had departed from the model litigant policy by failing to disclose certain documents in the material tendered in the proceedings when the matter was listed to be heard as a single hearing. We were referred to the decision in Australian Postal Corporation v Bessey [2001] FCA 266 where Gyles J found that a Senior Tribunal Member of the AAT erred in law in rejecting the tender of a video of the applicant sought to be adduced during her cross-examination and not previously disclosed to her or her legal representatives. In the course of his reasoning Gyles J referred to the decision of Wilcox J in Re Australian Postal Commission v Dr Robert A Hayes, Senior Member, Administrative Appeals Tribunal and Ursua Barnbrooke [1989] FCA 176. Gyles J discussed with approval the practice of testing of a witness in cross examination by questioning and then the adducing of a document to impeach the witness' credibility in the context of administrative review.
Wilcox J adopted similar reasoning in Re Postal Commission v Dr Robert A Hayes but noted some limitations on the practice. His Honour said: 27. The comment which I have just made is relevant to Dr Hayes' observations regarding the open conduct of proceedings before the Tribunal. Openness is a notable feature of the Tribunal's procedures. It is a feature which has contributed significantly to the Tribunal's efficiency and which has enhanced the status of its decisions. There is everything to be said, in the vast majority of cases, for insistence upon the full and early disclosure of all material documents. But, in an exceptional case in which a party can demonstrate that the temporary suppression of a document is necessary for the proper presentation of its case, the ideal of openness must give way to the Tribunal's statutory obligation to give to all parties a reasonable opportunity to present their cases.
As presently advised, we discern that generally the HCCC will, in accordance with its role as a model litigant in the Tribunal, disclose all material on which it seeks to rely to prove a complaint unless the disclosure could potentially prejudice the Tribunal in making findings on liability. However, there may be circumstances where issues of credit arise when it may be appropriate to adduce a document after a witness has been cross-examined and provides an explanation contrary to documentary evidence. In this instance, however, we see no reason why the HCCC could not have disclosed the practitioner's criminal conviction for drug possession and how he reported that on his application for re-registration for the Stage 1 hearing. We do not find, in the circumstances of this case, the failure to disclose the Local Court transcript should be regarded as "disentitling" conduct. That transcript threw in issue the credibility and honesty of the practitioner.
Ms Mathur also refers to the manner in which the complaint was set out and in particular that the HCCC initially particularised each complaint (One to Twenty-Six) on the basis that the practitioner's conduct was not only unsatisfactory professional conduct under s 139B(1)(a) but was also "improper and unethical conduct" under s 139B(1)(l). Ms Mathur notes in her submissions that, as the HCCC advised that all conduct in Complaints One to Twenty-Six was "improper or unethical", "[t]he respondent entered the witness box on this understanding and spent 5 days under cross-examination with this as a live issue". It is noted only after five days of hearing that the practitioner received from the HCCC an amended complaint on 27 March 2019 which withdrew every allegation of improper and unethical conduct.
Ms Mathur also submitted that the complex nature of the manner in which the complaint is set out or "pleaded" (using that word in a non-technical sense) positively added to the complexity of the matter and time spent in the hearing. Given the seriousness of the issue raised we set out para 48 of Ms Mathur's submissions in full: Furthermore, as noted by the Court of Appeal in Fraser, the necessity of the respondent having to meet, and the Tribunal having to find proven or not, a multitude of particulars and sub-particulars adds a level of unwarranted complexity, which, in our submission, adds to the burden of costs in prosecutions of this kind. As that burden will inevitably fall on the respondent except in very rare cases, there is an important public interest in giving careful consideration to the amount of costs incurred and whether they are incurred unnecessarily through a habitual practice of drafting lengthy and repetitive Complaints, and, perhaps, reliance on a simple premise that costs are covered (as they most usually are) by indemnity insurance. This was the "deep pockets" attitude that led to significant increases in costs in civil litigation, and the resultant increase in insurance premiums, resulting, ultimately with reform to the civil liability jurisdiction. The NSW Civil and Administrative Tribunal, in keeping with many organs of the State whose functions are exercised in public interest litigation or prosecution is usually a 'no cost' jurisdiction. The medical disciplinary jurisdiction in the Tribunal is, however, a 'costs jurisdiction' but in our submission the exercise of discretion in the Tribunal is an important safeguard against the creeping escalation of costs in direct connection to the number of sub particulars that have to be addressed, rather than reflecting, for example, inherently complicated clinical issues or the need to resolve conflicting expert evidence of a particularly technical or challenging matter.
By contrast, Ms Lowson submits we should not regard the matters raised by Ms Mathur on behalf of the practitioner as "disentitling conduct" sounding in a reduction of costs payable to the HCCC. She refers to the practitioner's failure to comply with directions and that his late filing of a Reply document meant it was necessary to engage in a lengthy cross-examination of the practitioner about his record keeping. Reference is also made to the practitioner only adducing three expert articles during the course of the hearing resulting in the HCCC's expert needing to provide a supplementary statement overnight.

Consideration

We note that in Health Care Complaints Commission v Philipiah Emmett JA with whom Meagher JA agreed said: As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48] - [52]). It has not been suggested by the Doctor that any of those factors applied. As the Tribunal observed in its reasons, the question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95).
In this case the HCCC was not successful in establishing all the particulars. Further, and of relevance, we agree with Ms Mathur's submission that the withdrawal of the complaint of improper and unethical behaviour after five hearing days did affect the conduct of the proceedings and the admissions made, or not made, by the practitioner. Those matters are relevant to the exercise of our discretion. We also agree with Ms Mathur's submission that the failure to disclose all of the material relied on in respect of protective orders until the conclusion of the practitioner's evidence contributed to the necessity for separate proceedings to deal with protective orders. However, for the reasons discussed above, we do not find the failure to disclose some of the material adduced for the Stage 2 hearing including the Local Court transcript, which was adduced to impeach the practitioner's credibility, constitutes disentitling conduct.
We also generally agree with Ms Mathur's submissions about the manner in which the complaints were particularised added to hearing time (and we would say, consideration by the Tribunal).
Balancing all of these factors, we find the appropriate order in respect of costs is that the practitioner pay 80 per cent of the HCCC's costs. A twenty per cent discount properly reflects the additional time spent in the hearing including these Stage 2 proceedings and the matters highlighted above.

ORDERS 1. The registration of Dr Thomas Goyer (the practitioner) on the register maintained by the Australian Health Practitioner Regulation Agency is cancelled. 2. The Registrar is requested to advise the Medical Council of NSW of order 1 of these orders as soon as practicable. 3. Pursuant to s 149C(7) of the Health Practitioner Regulation National Law the practitioner is prohibited from making an application for review under s 163A of the Health Practitioner Regulation National Law for twelve months from the date of these orders. 4. The practitioner shall pay 80 per cent of the Health Care Complaints Commission's costs of and incidental to the proceedings as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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 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: 24 December 2019

Medical Practice Act 1992(NSW)

Extract Crimes (Sentencing Procedure) Act 1999(NSW)

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