Health Care Complaints Commission v Mathad

The statutory power to make the order sought

1. Mr P Aitken, the practitioner's counsel, supported the application by oral submissions. At my request, Mr Aitkin kindly reduced his oral submissions to writing and provided them to me in advance of the resumption of the hearing on Day 4. He also provided me with a copy of the decision in Kalid Kaddour v The Queen [2013] NSWCCA 243. The written submissions firstly deal with the statutory power to make the orders sought.
2. Mr Aitken commenced his submissions by noting that "it is uncontroversial that s 128 applies in proceedings before the Tribunal: s 38 (3)(b) Civil and Administrative Tribunal Act 2013 (No 2)". No submission was addressed by either party as to whether any inconsistency arises under the Health Practitioner Regulation National Law (National Law) which would render s 38 (3) (b) inoperative (see Medical Council of NSW v Lee [2017] NSWCA 282). Prior to the introduction of the CAT Act, the 14 former health professional Tribunals were, from the introduction of the National Law, governed by that law.
3. Section 38, which is found in Part 4 of the CAT Act, (the part dealing with Practice and Procedure) is subject to the enabling legislation (in this case the National Law). Although s 164D, which is found in Part 8 Division 9 makes special provision for evidence to be given to an "authorised person" being a person authorised by the Secretary under s 164, there is no other provision in the National Law itself which explicitly provides that s 128 is to apply in disciplinary proceedings. Thus, the application of s 164D appears limited to Division 9 which deals with enforcement of search warrants and the like not raising an inconsistency between the National Law and the CAT Act such as to preclude the operation of s 128 in disciplinary proceedings before the Tribunal.
4. The submissions did not address the question of whether the determination of the granting of a certificate or certificates is a question of law or a point of law to be exercised by the Presiding Member alone or by the Full Tribunal. There is no explicit provision in the National Law granting power to the member presiding to determine a point of law, except in the context of an appeal. Further, although the Tribunal under s 159B(5A) is to be constituted by the List Manager or the member presiding when making an ancillary or interlocutory order under the CAT Act, the submissions do not address whether the orders now sought bear the characteristic of an interlocutory order. Although the definition of interlocutory in s 3 of the CAT Act does not include specifically an order under s 128 it does include "an evidential matter". Although the application was made before the Full Tribunal, absent any suggestion to the contrary, I am satisfied that this matter is one which may be determined under the CAT Act as an interlocutory order. I adopt with respect the reasoning of Harrison J in Kalid Kaddour v The Queen noting however that decision was made in the context of the specific appeal provisions of the Criminal Appeal Act 1912 (NSW) (s 5F (3)).

The general propositions raised by the submissions made on the practitioner's behalf

1. The submissions commence by noting that the jurisdiction being exercised by the Tribunal is protective and that the health and safety of the public must be the paramount consideration with reference to s 3A of the National Law. I accept the correctness of that submission.
2. At [3] the submissions acknowledge that the practitioner is not "compellable in this jurisdiction to co-operate and file evidence and give oral evidence", but goes on to note the practical effect of a number of decisions where a practitioner has not done so. In particular, reference is made to the fact that the Tribunal can "in appropriate cases" draw an adverse inference where a practitioner elects to remain silent in the face of serious allegations of misconduct".
3. The submissions note that the practitioner has elected to file evidence in these proceedings and that he gave evidence in the proceedings conducted under s 150 of the National Law, and that he now faces cross-examination at large which could attract the privilege against self-incrimination.
4. The submissions address the question of evidence of text messages passing between the practitioner and Person F, a young person engaged as part of a TAFE certificate training scheme as a clerical assistant in the practice where the practitioner carried on practice as an employed practitioner. The submissions go on to deal with an assertion that while Person F was in his car the practitioner pulled the car over when she started to cry, took hold of her left forearm and stroked it and kissed her on the cheek. It is submitted: …the complaint lodged by the Commission alleges that the conduct in Compliant Two particular 5 was conduct of a sexual nature. Under NSW law, an indecent assault may be proved. It is not inconceivable that, if the respondent should ever face any proceedings of a criminal nature in another jurisdiction, it may well be sought to argue that the texts contextually can be used to draw inferences as to the state of mind and belief as to consent for the event in the car in particular 5.
5. Similar submissions are made in respect of Patients B, C and D named in the complaint.
6. It is further submitted: 1. The practitioner's material does no more, in certain important respects, than to amount to a bare denial; it is not to be construed as a waiver of privilege; 2. Because issues of consent (or lack thereof) can rest on inferences and or examination of state of mind, these are unexplored and the privilege against self-incrimination is preserved; 3. Even if the protection does not extend to material already filed (and I would note admitted into evidence without objection) that s 128 does not explicitly restrict the right to maintain an objection - in summary that the words "objects to particular evidence" should be construed broadly to protect against evidence which has not been given; 4. It is reasonable to grant a certificate in a protective jurisdiction where an adverse inference may be drawn from silence; 5. The nature of the complaints (which I note includes asserted inappropriate sexual conduct with Patients B, C and D) may tend to prove there is a reasonable basis for objection; 6. The Tribunal has previously concluded that the granting of a certificate is available as a mechanism to protect in cross-examination (see HCCC v Istephan [2017] NSWCATOD 15).
7. The submissions also refer to the comments of Campbell J in Ollis v Melissari [2005] NSWSC 1016.
8. Discrete submissions are advanced in respect of granting certificate in respect of the practitioner's evidence and or evidence in chief retrospectively. In this respect reliance is placed on the decision in Ferrall v Blynton. The submissions point out that although the practitioner's statements have been "filed" (I would say admitted giving the marking of the material as Exhibits at the commencement of the hearing without objection or subject to objections on which rulings were made) that a certificate could be granted. Similar submissions are made about the s 150 statements in the material relied on by the HCCC. It is noted the practitioner's statements are not given on affidavit and do not contain a jurat. Reference is made to the wording of s 128 (6) and it is submitted it could be read with sufficient width to conclude "that the filing of the statement without objection being taken would not exclude it from protection where objection is subsequently taken".
9. The submissions make an appropriate number of concessions in respect of the practitioner's submissions on the availability of s 128 (6) and the granting of a certificate in respect of evidence in chief.

The submission of the HCCC

1. The submissions relied on by the HCCC were only received this morning. No criticism is intended by me noting that fact. I accept any delay was occasioned by the necessity to obtain instructions from the Director of Proceedings.
2. Essentially the submissions do not oppose the granting of certificates in respect of cross-examination and potentially questions arising in re-examination from those questions to Patients B, C and D and Person F but do oppose the granting of certificates in respect of Patient A and Person E.
3. The HCCC opposes the granting of a certificate in respect of the practitioner's Reply, his two statements admitted into evidence on day 1 of the hearing and any further oral evidence in chief to be adduced in these proceedings. The submissions do however note with reference to Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA22, 230 CLR 89 that it would be open to the Tribunal not to follow Song v Ying [2010] NSWCA 237 "if it finds the import of compulsion as a precondition to the operation of s 128 plainly wrong". I note the submission at [7]. I will return later in these reasons to further aspects of the HCCC's submissions.

Does the practitioner have reasonable grounds to object to giving answers to questions posed to him in cross-examination in respect of Patient B, C and D?

1. In relation to these patients I accept the submissions of the HCCC that Song v Ying makes it clear that the provisions of s 128 of the Evidence Act 1995 (NSW) apply in both civil and criminal jurisdictions. The Commonwealth Act also applies in respect of proceedings under the Family Law Act 1975 (Cth). These are civil proceedings where generally (with the exceptions in respect of certain parenting proceedings) the Evidence Act 1995 (Cth) applies.
2. The particulars of the complaints in respect of Patients B, C and D and Person F each raise issues of a lack of clinical judgment and/or improper or unethical conduct of a sexual nature. I accept in light of those pleadings that under s 128 (2) there are reasonable grounds to the practitioner objecting to answer questions posed in cross-examination or further questions arising in re-examination from those questions. I accept the reasoning of Campbell J in Ollis v Melissari [2005] NSWSC 1016 that it is unnecessary, having regard to the wording of s 128(1) of "giving particular evidence", to grant a certificate on a question by question basis, but rather it should extend to the topic of the asserted sexual assaults or conduct of sexual nature.

Does the practitioner have reasonable grounds to object to giving answers to questions posed to him in cross-examination in respect of Patient A and persons E and F?

1. I accept that the particulars in respect of Patient A are found in Complaint One which asserts unsatisfactory professional conduct under s 138B (1) (a) and (l) and the complaint in respect of Person E Complaint Two does not identify at all the provisions of s 138B on which it is founded. I infer that it is meant to also relate to s 138B (1) (a) and (l).
2. I find cogent reasons are advanced in the submissions made on behalf of the practitioner on which I could be satisfied that there are reasonable grounds for an objection to answering questions in respect of Patient F. In am not satisfied there are reasonable grounds in respect of Patient A and Person E. Accordingly I refuse a certificate in respect of that patient and person.

Does the word "objects" in s 128 (1) extend to evidence given in chief, without limitation, if a reasonable ground is established for the objection? (see Ferrall and McTaggart as Trustees for the Sapphire Trust and ors v Blynton and Blynton and Attorney-General for the Commonwealth (Intervenor) [2000] FamCA 1442)

Is the correct construction of the word "objects" in s 128 limited to evidence adduced (whether in chief, cross-examination or re-examination) to circumstances where the witness (in this case the practitioner) is compelled to give the evidence?

Is a practitioner, in the circumstances of a practitioner facing disciplinary proceedings compelled to give evidence in chief, and thus entitled to the protection of a certificate?

1. It is appropriate that I address these three questions together as the authorities and principles from the authorities overlap.
2. Before doing so, I turn to consider the issue of the drawing of adverse inferences if a practitioner does not give evidence.
3. The drawing of adverse inferences if a practitioner does not give evidence
4. The leading case on this topic to which I was directed is the discussion of Basten JA in Lucire v Health Care Complaints Commission [2011] NSWCA 99. The relevant paragraphs from his Honour's judgment are as follows: The first limb of the argument requires consideration of whether the privilege against giving evidence that may expose the person to a civil penalty applies to a medical practitioner in respect of disciplinary proceedings in the Medical Tribunal. The Commission put forward a careful analysis as to the circumstances in which inferences can properly be drawn against a practitioner who fails to provide an explanation of his or her conduct. The Commission submitted that, whatever the precise situation in respect of a medical practitioner facing disciplinary proceedings, in terms of any positive obligation to provide an explanation, the situation cannot be overstated by equating it with the position of an accused who failed to give evidence in a criminal trial. The primary principle in criminal proceedings, explained in Azzopardi v The Queen [2001] HCA 25; 205 CLR 50 (a principle often identified by reference to an earlier decision in which it was explicated, namely Weissensteiner v The Queen [1993] HCA 65; 178 CLR 217), is that the judge may advise a jury that it can more safely draw an inference adverse to the accused from proven facts where there are facts additional to those revealed by other evidence, which were known only to the accused but not provided by him: at [60]-[61] and [64]-[68]. In some cases it may be necessary to explore the concept of "additional facts". Facts may often be inferred from evidence and, indeed, the purpose of the direction is to permit the jury to infer such facts in circumstances where the prosecution evidence may not necessarily bear the full weight required by the criminal burden of proof. For present purposes it is sufficient to treat the inference as available where an explanation of matters revealed by other evidence falls peculiarly within the knowledge of the practitioner. For the purposes of a criminal trial, the Court in Azzopardi preferred a direction framed in terms of the failure of the accused to "offer an explanation" rather than his or her failure to give evidence. In Council of the New South Wales Bar Association v Power [2008] NSWCA 135; 71 NSWLR 451, Hodgson JA (with whom Beazley and McColl JJA agreed) noted that an explanation could be proffered in disciplinary proceedings without the practitioner (in that case a barrister) entering the witness box: at [28]. It was further held in Azzopardi that it should be made clear to a jury, and is therefore relevant to the obligations of the Tribunal, that it need not draw an adverse inference in the absence of a relevant explanation: see Azzopardi at [67]. The Tribunal would thus be entitled to take into account the circumstances in which the explanation was not forthcoming and would also be entitled to bear in mind the principle that the burden remained on the Commission to establish affirmatively the facts and inferences required to support the complaint. The Commission separately submitted that there was a professional obligation on the practitioner to give evidence to the Tribunal as to her conduct, which duty was not fulfilled in the present case. There is an apparent tension between any such professional obligation and the privilege against self-incrimination or against rendering oneself liable to a civil penalty. In Power, Hodgson JA stated [28]: "Furthermore, the reasons said to justify his not giving evidence have to be considered alongside the obligation of candour.... In my opinion, this obligation of candour should not be overridden by a right to silence to any greater extent than is strictly required by that right." This tension was also discussed in relation to medical practitioners in Wingate (referred to at [75] above) at [42]-[49], in a passage quoted without disapproval in Power, at [16]. In New South Wales Bar Association v Meakes [2006] NSWCA 340, Tobias JA (with whom Bryson JA and I agreed) stated that the refusal of the practitioner to give evidence "should have been the subject of harsh criticism by the Tribunal": at [77]. His Honour further referred to his failure to give sworn evidence as "inexcusable": at [78]. These statements suggest that, at least in the case of a legal practitioner, there is an obligation to give evidence, although the availability of sanctions for failing to do so is less clearly identified. In Power, adopting the approach discussed in Azzopardi, Hodgson JA said that the principles stated in Meakes "may have been expressed too sweepingly": at [26]. However, his Honour did not need to determine that question; similarly, the full extent of any equivalent principle applicable to medical practitioners was not determined in Wingate. As will be seen below, neither is it necessary to take the matter further in the present case. First, the conclusion which follows from this review of authority is that there is no support for the proposition that a specialist Tribunal (whether a jury or a disciplinary Tribunal) is obliged to draw adverse inferences in the absence of an explanation from the respondent. Such an obligation (at least as expressed in such absolute terms) would be inconsistent with the entitlement of the Tribunal to take into account the circumstances in which the failure to offer an explanation arose, including the importance of the matter in the proceedings and the potential adverse consequences for the practitioner of failing to proffer an available explanation.
5. The HCCC's submissions note at [27] "the practitioner's submissions advocate for an explanation of the meaning of compellable to include 'de facto' compellable". The submissions go on to refer at [30] to the recent decision of Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 550 where a worker sought a s 128 certificate in respect of his evidence in chief. The submissions note "Section 361 provided that absent testimony from him [the defendant] the relevant intent for the alleged contraventions would be presumed. It was suggested in that case, the operation of that provision would result in proof of the alleged contraventions".
6. At [31] the submissions note: Bromberg J at [25]-[26] considered such a certificate was properly characterised as a desire to give evidence in order to avoid judgment being entered against him and as such was compulsion by circumstances and not by law. Therefore, applying Song v Ying his Honour considered the availability of a certificate pursuant to s 128 (1) of the Evidence Act was precluded.
7. The HCCC's submissions recognise the availability of adverse inferences if evidence is not given, and the impact of a lack of demonstrated insight. However at [34] the HCCC's submissions note: Nonetheless, the circumstances pointed to by the practitioner remain matters within his own realm of practical, forensic or strategic choice and decision-making. Those circumstances may influence his choice/decision, but he remains responsible for his own choices/decision. As the law presently stands, none of the circumstances pointed to amount to the precondition of compulsion for the purposes of section 128.
8. I find force in that submission. Having regard to the current authorities, particularly Song v Ying I am satisfied that the word "objects" in s 128(1) evokes consideration of whether the practitioner is compelled to give evidence in chief. While I find the practitioner may be granted a certificate in respect of questions which may tend to incriminate him if posed in cross-examination, I am not satisfied he is compelled to give evidence in chief.
9. In so finding I note that the decision in Ferrall has not universally been followed in the Family Court (see Aiken v Murphy [2011] FamCA 785). I also take into account the reasoning of Harrison J in Kalid Kaddour v The Queen at [34] and [35]. There his Honour said the decisions in Cornwell v The Queen [2007] HCA 12 "do not abrogate the privilege against self-incrimination at all. They do no more than apply the words of s 128 in a way that excludes the availability of a s 128 certificate to a person who is not compelled to give evidence in respect of which the certificate is sought". His Honour goes on to explain at [35] The appellant's submission also misconceives the true nature of the privilege against self-incrimination, which confers immunity from an obligation to provide any information tending to establish one's guilt. A person is not bound to answer any question or produce any document or thing if that material would have a tendancy to expose the person for a conviction for a crime.
10. As to the submissions made on behalf of the practitioner in respect of the granting retrospectively of a certificate, I adopt [37 and 38] of the HCCC's submissions on that topic. I am fortified in my acceptance of the correctness of those submissions by reference to the learned authors of Odgers S Uniform Evidence Law at 128.120. There the learned authors say: A distinct issue arises, where evidence is given and, subsequently, an issue of self-incrimination is raised. On the face of it, this provision is expressed in the present tense ("objects to giving particular evidence") and it would be too late to make an objection after th evidence in question has been given
11. Section 126 (6) deals with the situation where an objection is made and wrongly overruled. Protection is afforded after the evidence has been given (see Odgers at 128.450). But the provision is not available in the situation where no objection is made before the evidence is given. I find that reasoning is consistent with the submissions made by the HCCC.
12. I am satisfied it would not, even if I found the practitioner was compellable, which I do not, that s 128(6) can apply retrospectively to his Reply or to his statements already admitted into evidence.
13. Accordingly my orders are as follows: 1. A certificate under s 128 of the Evidence Act 1995 (NSW) is granted to Dr Anil Mathad ("the practitioner") in respect of his answers to questions posed in cross-examination or arising in re-examination from such questions in respect of the patients identified as Patients B, C and D and Person F in the Amended Complaint filed in the Tribunal on 29 November 2017. 2. The practitioner's application for a certificate in respect of any questions posed in cross-examination in respect of the persons identified as Patient A and Person E is refused. 3. The practitioner's application for a certificate under s 128 of the Evidence Act 1995 (NSW) in respect of the Reply dated 6 November 2017, his statement dated 4 November 2017 and supplementary statement dated 28 November 2017 is refused. 4. The practitioners application for a certificate under s 128 of the Evidence Act 1995 (NSW) in respect of any oral evidence in chief is refused.

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 16 February 2018 - Case name "HCCC" amended to "Health Care Complaints Commission" 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: 16 February 2018