Health Care Complaints Commission v Jamnagarwalla

The application

1. On 3 September 2021 the practitioner's solicitors filed a General Application form. Two orders were sought in the application namely: 1. The hearing dates of 20 to 24 September 2021 are vacated. 2. The matters are listed for directions to allocate a date for an "in person" hearing.
2. In the grounds for the application it is noted that this matter was listed for an "in person" hearing, other than in relation to the evidence of Patient A. The practitioner's solicitors submit "The hearing cannot proceed 'in person' due to Covid restrictions" and "The Respondent will be significantly prejudiced if the matter proceeds by way of audio visual link" (AVL).
3. On 6 September 2021 the practitioner's solicitors filed and served an affidavit of Ms Barbara Versace, affirmed that day, in support of the application. Ms Versace has the care and conduct of this matter on behalf of Avant Mutual, the practitioner's solicitors.

The affidavit of Ms Versace

1. It is unnecessary for the purpose of these reasons that I set out in full the matters deposed to by Ms Versace.
2. Of relevance Ms Versace deposes as follows: 1. that Avant staff are no longer permitted to attend Avant's Sydney office in any circumstance; 2. counsel who is briefed for the practitioner to appear at the hearing, Mr T Windsor SC, has advised the practitioner he is not permitted to attend his chambers; 3. if the matter proceeds, the practitioner would be required to participate by AVL from a remote location without ready access to his lawyers and counsel and he will be impacted to his detriment by not having the opportunity to benefit from their counsel; 4. the hearing is complex comprising three complaints with multiple particulars of complaint. The Health Care Complaints Commission's documents comprise over sixteen hundred pages. Accessing the documents during his cross-examination and the hearing is likely to be confusing to the practitioner, particularly where the documents are in electronic form; 5. the practitioner is not well versed or sufficiently familiar with the technology required for audio visual platforms of the type adopted in a court hearing; 6. the practitioner's practice is within the Blacktown Local Government Area, a local government area subject to the strictest lockdown under the NSW Government Health Orders; 7. under his current conditions, the practitioner is only seeing male patients mainly by telehealth consultations; 8. an audit of the practitioner's medical records has been conducted and found to be consistent with good medical record keeping and the auditor noted "the respondent was receptive to the advice to improve the recording of family and social history"; and 9. that the practitioner would experience difficulties in having access to a computer and conducting the hearing from his home. There are two computers in his home but these are used by his three children who are respectively in Years 10, 7 and 2 at school. The practitioner's eldest child suffers from an intellectual disability.

Submissions

1. In her oral submissions Ms Versace highlighted the matters in her affidavit. When she became aware that the hearing dates fall within the NSW school holidays, she emphasised that it would be difficult for the practitioner to participate from his home in circumstances where all three children would be present.
2. Ms Versace also highlighted the fact that a significant complaint asserted against the practitioner is a "boundary violation" claim, namely the touching of the thigh of a then twelve year old girl during his examination of her when the child complained of an ear ache and sore throat. The particulars of this complaint are denied by the practitioner. Ms Versace pointed out that the complaint raises issues of credit and the practitioner would be prejudiced if he is not able to give evidence in person and be observed by the panel when being cross-examined.

The Health Care Complaints Commission's submissions

1. The Health Care Complaints Commission (the HCCC) opposed the application. The HCCC helpfully provided written submissions and Mr S Maybury of counsel expanded on the written material in his oral submissions.
2. The submissions set out the history of the matter noting the matter was fixed for hearing on 23 April 2021 and confirmed at a directions hearing on 25 June 2021, but the application for adjournment was only first flagged on 1 September 2021 and followed by the formal application on 3 September 2021.
3. The submissions accept that the material relied on by the HCCC is voluminous but say that the practitioner has had ample time to consider the material and that admissions made by the practitioner have significantly minimised the matters in dispute.
4. The submissions note the patient, the subject of the first complaint, is available to give evidence by AVL and explain that the Tribunal has already made an order for the patient, because of her young age, to give evidence by AVL. The submissions note that "Patient A's mother has informed the Commission she may be unwilling to give evidence if the current hearing is adjourned. Patient A may have increased difficulty recalling the alleged conduct if the current hearing is adjourned".
5. The submissions also note that the HCCC's expert is available and can give evidence by AVL.
6. At par 13 it is submitted: The respondent can be afforded procedural fairness during the hearing. The respondent can be given electronic and/or paper copy of the Commission's material. The respondent can communicate with his legal team by email/phone/text message. The Commission does not object to the respondent being granted short adjournments during the hearing to consult his legal team as required. The Stage 1 hearing has a generous 5 day estimate.
7. The submissions conclude noting it is uncertain when an in person hearing can be conducted in 2021 or 2022 and adjourning the hearing until there can be an in person hearing "would be to adjourn it for an indeterminate period".
8. Very properly, during his submissions, Mr Maybury agreed that many chambers are prohibiting clients from visiting chambers and he freely conceded there are multiple credit issues requiring resolution in the proceedings.

The Tribunal's guideline on adjournments and relevant legal principles

1. The Tribunal's guidelines and relevant principles are discussed briefly by me in ex tempore (oral) reasons in Health Care Complaints Commission v Kirby [2021] NSWCATOD 113 at [13]-[16] as follows: The Tribunal has published a guideline to inform and guide parties seeking to adjourn proceedings. The guideline has application in the Administrative and Equal Opportunity Division and the Occupational Divisions of the Tribunal. The relevant principles for an adjournment are set out in the guideline that follows: "3. The overriding principle is that when a date and time has been set for a hearing it will go ahead on that date and at that time unless the Tribunal allows an adjournment. 4. In considering whether to allow an adjournment the Tribunal will (a) take into account the need to manage cases and hearings fairly and efficiently, this includes making sure cases are heard as soon as possible, and (b) allowing an adjournment only if the party requesting it has a good reason and it is fair in all the circumstances to adjourn". These principles accord with common law principles dealing with late amendment and adjournments and I refer to the decision of the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27. They also reflect the objects of the Civil and Administrative Tribunal Act 2013 (NSW). The Health Practitioner Regulation National Law (the National Law) cl 11 of schedule 5D provides that it is the duty of the Tribunal to hear enquiries under this law and to determine those enquiries and appeals expeditiously. However, cl 11 (2) grants a discretion to the Tribunal to postpone or adjourn proceedings before it as it thinks fit. I also note and take into consideration in this application s 3A of the National Law. The objective in that section is applicable in all applications under the National Law. It is a New South Wales provision and it provides that the health and safety of the public must be my paramount consideration. Ultimately the determinative factor is where do the interests of justice lie?
2. This application squarely raises matters of procedural fairness. Although the Tribunal is not bound to observe the rules of evidence in relation to admissibility of material in proceedings under the Health Practitioner Regulation National Law (NSW), it must afford procedural fairness to parties before it.
3. The relevant well known principles are expounded in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 (see also Deputy Secretary, Local Government, Planning and Policy v Garrard [2021] NSWCATOD 75).

Consideration

1. In determining this application I gave significant weight to the fact that when the matter was fixed for hearing it was for an "in person" hearing. That determination was made because of credit issues in the proceedings, particularly the credit of the practitioner and Patient A.
2. I note that Mr Maybury, most appropriately in my view, agreed that the matter involved serious credit issues and that he would be conducting an extensive cross-examination of the practitioner.
3. While a witness' demeanour can be assessed when a hearing is conducted by AVL and I am conscious on the limits on assessment of credibility as explained In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [31], I accept that it is generally preferable where credit is squarely in issue that a practitioner in the situation of this doctor should be afforded the opportunity to give his evidence in person before the panel who are also physically present in the hearing room.
4. I gave weight to the fact that the practitioner cannot visit his counsel's chambers or attend Avant's offices to consult with his solicitor or to use the AVL facilities at that office. While I accept that the practitioner could speak to his solicitor and barrister by phone during the hearing such a course is likely to be stressful for him and to delay proceedings. I also found, given the large volume of material, that it would create practical difficulties for the practitioner trying to locate documents at the same time as he is giving evidence remotely. I found that to require the practitioner to participate in the proceedings with constraints on his ability to access his lawyers would be procedurally unfair.
5. I also accepted that the current public health orders, and in particular those in the Blacktown LGA, mean that the practitioner would have to give evidence for five days from his home at the same time that his three school aged children would be required to spend long periods in the home. I accepted that he is unable to use his practice facilities as he has taken leave from the practice for the duration of the hearing.
6. I did not place significant weight on the practitioner's asserted unfamiliarity with AVL technology. First, the Tribunal has been conducting directions hearings for several months with self-represented parties joining AVL hearings using the link provided by the Tribunal without undue difficulty. Secondly, Ms Versace's evidence is that the practitioner has been conducting telehealth consultations and I infer these have either been by telephone, Zoom or other technology. In these circumstances it is likely that the practitioner does have at least some familiarity with the use of technology.
7. I also took into account that delay of the proceedings is not likely to impact the health and safety of the public. The practitioner has conditions on his registration prohibiting him from seeing female patients. His practice records have been subject of an audit without adverse comment.
8. I endeavoured to balance the factors in favour of the adjournment with the likely stress and anxiety which may be caused to Patient A by the delay in the proceedings. In this application there was no direct evidence of any stress which may be occasioned to Patient A, but I accept it is likely to be upsetting if the matter is further delayed and her memory may be impacted. I infer however that she has provided a statement to the HCCC closer in time to the events complained of and can refresh her memory from that statement.
9. I gave some weight to the fact that this application was not made at an earlier time. However, I am conscious that the present Covid outbreak and consequent public health orders have resulted in decisions, such as those adopted by the practitioner's counsel's chambers, which could not reasonably have been anticipated at the last directions hearing in June 2021.
10. Although the HCCC submitted that this matter will be delayed for an indeterminate period, I consider that with appropriate case management the matter can be fixed for an in person hearing, as originally contemplated, as soon as practicable.
11. It was for these reasons I determined that the hearing dates should be vacated.

ORDERS 1. The hearing fixed for 5 days commencing 20 September 2021 is vacated. 2. The matter is listed for directions on 24 September 2021 at 10:30am.

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: 20 September 2021