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[2013] NSWCA 342
appellant. Appeal allowed; orders 2, 3, 4, 5, 6 and 8 of the Tribunal set aside; in lieu thereof conditions set out in the Schedule imposed on the respondent's registration and the respondent ordered to pay...
The Court of Appeal decided that the Medical Tribunal went beyond its legal powers when it suspended Dr Philipiah's registration for an open-ended period until the Medical Council decided to lift it. The law only lets the Tribunal set a fixed length of time for a suspension. The Tribunal also could not tell the Council exactly how to review the suspension or order it to take specific steps about the doctor's health condition. On costs, the Tribunal was wrong to let the doctor off paying simply because he had little money and a family; the rule is that the loser pays the winner's costs unless there are good legal reasons otherwise. The appeal court replaced the faulty orders with a set of strict conditions on the doctor's registration that the parties had largely already agreed, and ordered him to pay the Commission's costs of the original hearing.
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The Health Care Complaints Commission (the Commission) brought two complaints against Dr Leonard Philipiah before the Medical Tribunal of New South Wales. Complaint one alleged unsatisfactory professional conduct or professional misconduct arising from the doctor's management of four patients while working at Moruya Hospital. The particulars focused on inadequate history-taking, examination, development of management plans and follow-up. Complaint two alleged that the doctor suffered from bipolar affective disorder, an impairment likely to detrimentally affect his capacity to practise.
After a three-day hearing the Tribunal found that the doctor's treatment of two of the four patients amounted to professional misconduct and that the cumulative effect of his conduct constituted professional misconduct. It also found that he suffered from an impairment. However, the Tribunal expressly rejected the Commission's submission that deregistration was required. It concluded that a finding of professional misconduct was not inconsistent with a finding of impairment where no wilful conduct was involved, that the doctor remained competent to practise, and that suspension rather than cancellation was appropriate.
The Tribunal reprimanded the doctor, suspended his registration, and then crafted a detailed suite of orders concerning the lifting of that suspension. It nominated the Medical Council of New South Wales (the Council) as review body and directed that the doctor notify the Council three months before intending to resume practice in New South Wales. The Council was required to obtain a conduct report from the New Zealand Medical Council and an updated psychiatric report. Upon being satisfied of those matters the Council was "authorised" to lift the suspension. The Tribunal further ordered that, if the doctor resumed practice, the Council "should" place specified conditions on his registration (a modified version of conditions the parties had agreed) and must manage his impairment in accordance with its statutory obligations. Finally, despite the doctor having unsuccessfully contested both complaints until late in the hearing, the Tribunal made no order as to costs, citing his limited means, family responsibilities, lack of New South Wales insurance and the fact he was "only just beginning to get his life in order".
The Commission appealed under s 162 of the Health Practitioner Regulation National Law (NSW) (the National Law) on points of law. The appeal challenged the suspension order, the ancillary orders directing or authorising the Council, and the costs decision. The Court of Appeal (Meagher JA agreeing with Emmett JA; Beech-Jones J agreeing with both) allowed the appeal, set aside orders 2, 3, 4, 5, 6 and 8, substituted a comprehensive set of conditions on the doctor's registration, and ordered him to pay the Commission's costs of the Tribunal proceedings fixed at $18,279.26.
Emmett JA began with the statutory text. Section 149C(1) permits the Tribunal to suspend a practitioner's registration "for a specified period" or to cancel it. The Tribunal's order 2 suspended the doctor "for the period of time until the Medical Council of New South Wales as the Tribunal's nominated Review Body lifts the suspension". At [22] his Honour held that a "specified period" must be "fixed, definite and certain". No such period had been fixed; the duration depended on a future decision of the Council. That was beyond power.
The Court further held that orders 3 and 4 created an impermissible bespoke review regime. Division 8 of Part 8 (ss 163–163C) exhaustively defines the Council's powers once the Tribunal nominates it as review body. The Tribunal cannot confer additional powers or alter the statutory criteria the Council must apply. Order 4's "authorisation" to lift the suspension after considering reports was therefore ultra vires. Similarly, order 5's direction that the Council "should" exercise powers under s 150(1)(b) to impose conditions, and order 6's command that the Council "must ensure" the impairment was managed in accordance with its obligations, exceeded the Tribunal's authority. The Tribunal's function is to make protective orders, not to give mandatory directions to the Council about how it must perform its separate statutory functions.
On costs, the Tribunal had accepted that costs usually follow the event but departed from that rule solely on the basis of the doctor's impecuniosity and personal circumstances. Emmett JA reviewed the limited submissions made below and the late stage at which full admissions were forthcoming. He cited Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]–[52] for the factors that might justify a departure (failure on discrete issues, oppressive conduct) and Williams v Lewer [1974] 2 NSWLR 91 at 95 for the requirement that the discretion be exercised judicially on proper materials. None of those factors were present. At [44]–[45] the Court emphasised that costs compensate the successful regulator who has incurred expense in protecting the public; they are not a penalty. Hardship to the practitioner is not a rational basis for excusing him from the ordinary consequence of contesting and losing the complaints. The Tribunal's discretion had therefore miscarried. Because Judge Kavanagh had retired, remittal was impracticable and the Court fixed costs at the sum proven before it.
The practical outcome was to replace the defective suspension-and-review structure with the detailed conditions the parties had largely agreed, thereby achieving the protective purpose the Tribunal had intended without transgressing statutory limits.
Before the decision, the powers in subdiv 6 of Div 6 of Pt 8 of the National Law had been understood to require strict adherence to the statutory language. However, some tribunals had on occasion crafted orders that blended suspension with delegated decision-making to the Council, apparently seeking flexibility when a practitioner lived interstate or overseas. The costs principle that costs follow the event in disciplinary matters was well established, yet tribunals occasionally gave weight to personal hardship, particularly where a practitioner faced mental illness.
The Court of Appeal clarified three points. First, "specified period" in s 149C(1) is a bright-line requirement; any suspension order must state a fixed duration on its face. Second, the review mechanism in Div 8 is a complete code; the Tribunal may nominate the Council as review body but may not rewrite the Council's powers or give it additional discretions. Third, the costs discretion, while broad, is constrained by principle: compensatory purpose, the public-interest role of the Commission, and the absence of any general "hardship" exception. Impecuniosity alone will not justify departure.
After the decision, tribunals must either cancel registration, suspend for a stated number of months or years, or impose conditions directly under s 149A(1)(b). If a suspension is chosen and the Tribunal nominates the Council as review body, the Council’s powers remain those set out in s 163B; any further guidance must be given by way of non-binding reasons rather than orders. Costs orders in favour of the Commission have become more predictable; practitioners must adduce evidence of disentitling conduct by the Commission if they wish to resist the usual order. The decision has reinforced the protective, public-interest character of the jurisdiction.
At [22]: "A period is a portion of time. Specified denotes something definite or stated in detail. Accordingly, the phrase specified period means a period that is fixed, definite and certain."
Plain English: The law says the Tribunal must pick a concrete length of time for any suspension. Saying "until the Council says you can practise again" is not good enough.
At [23]: "no provision of the National Law authorises the Tribunal to suspend other than for a specified period. Order 2 was beyond the Tribunal’s power."
Plain English: Because the statute only gives the Tribunal power to set a fixed period, the order it actually made was invalid.
At [25]: "the Tribunal does not have power to confer on the Council the power to lift a suspension. The Council either has that power under Div 8 of Part 8 or it does not. If not, the Tribunal cannot confer it. If it already has the power, the order cannot confer an additional power."
Plain English: The Tribunal cannot rewrite the Council’s statute book. It must work within the powers Parliament has already given the Council.
At [44]: "It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made."
Plain English: Making the regulator pay its own legal bills just because the doctor is hard up is not fair. The money compensates the Commission for acting to protect patients; it is not a punishment.
At [45]: "The normal price to be paid for a practitioner’s disputing a complaint and losing is that, unless some disentitling conduct be established on the part of the Commission, the practitioner should bear the Commission’s costs…"
Plain English: If you fight the complaint, lose, and the Commission has done nothing unfair, you pay the bill. That is the ordinary rule.
The ratio applies whenever a tribunal attempts to suspend registration otherwise than by stating a fixed period on the face of the order. It is engaged if the tribunal tries to delegate the fixing of the suspension’s end date to the Council or to prescribe in mandatory language how the Council must conduct a review. The costs limb is triggered whenever a tribunal departs from "costs follow the event" on the sole ground of the practitioner’s financial position, family responsibilities or lack of insurance, without evidence of disentitling conduct by the Commission or discrete failure on separable issues.
The precedent is especially relevant where the practitioner resides or works interstate or overseas, a situation that tempts tribunals to craft flexible, Council-dependent orders. It also applies to any disciplinary scheme that uses identical language (most health professions under the National Law). Fact patterns in which the practitioner makes late or partial admissions, contests impairment or misconduct until the eleventh hour, yet ultimately loses, will ordinarily attract an adverse costs order absent special factors identified in Lucire.
Subsequent decisions have treated the case as authoritative on both the suspension and costs issues. In Health Care Complaints Commission v Do [2014] NSWCA 307 the Court of Appeal cited Philipiah at [34]–[35] for the strict meaning of "specified period" and set aside an order that left the duration of suspension to future Council approval. Tribunals now routinely state a suspension in months or years.
On costs, Health Care Complaints Commission v Litchfield (No 2) [2015] NSWCATOD 150 expressly followed Philipiah at [12]–[15], confirming that impecuniosity is not a basis to deny the Commission its costs. The Civil and Administrative Tribunal has applied the compensatory principle in numerous decisions, citing Philipiah for the proposition that the Commission acts in the public interest and should not be left out of pocket simply because the respondent is of limited means.
Appellate courts have also approved the distinction between binding orders and non-binding reasons. In Medical Board of Australia v Adams [2015] QCAT 582 (applying the equivalent Queensland legislation) the tribunal referred to Philipiah when explaining that it could express expectations about future Council action but could not make orders binding the Council. No court has doubted or distinguished the core holdings; the decision is routinely followed.
The judgment leaves open whether the Tribunal could suspend for a fixed period (say five years) and simultaneously express non-binding views about the evidence the Council should consider on any review after, for example, two years. The Court did not decide the precise boundary between permissible reasons and impermissible mandatory directions.
Another open question is the interaction with s 150 emergency powers. If the Council suspends under s 150 while a Tribunal suspension is running, how the two periods intersect remains unexplored. The decision also does not address the position where the practitioner consents to an indefinite suspension; whether consent can confer jurisdiction the statute does not give is unresolved.
On costs, the Court left open the weight to be given to partial success on particulars or to late but ultimately complete admissions. While Lucire factors remain relevant, the precise calculus when impairment and misconduct overlap is still fact-sensitive and likely to generate further litigation. Finally, the decision assumes the National Law’s text is exhaustive; whether amendments to the Law or new guidelines could expand tribunal powers without legislative change is a live constitutional and interpretive issue.
Most practitioners still do not realise that a seemingly pragmatic "suspension until cleared by the Council" order is a jurisdictional error that will be set aside on appeal, exposing both the practitioner and the regulator to further cost and delay. The strict drafting discipline now required can be counter-intuitive to tribunals seeking flexible protection of the public, which is why subscription services tracking these technical limits remain valuable.
Judgment 1MEAGHER JA: I agree for the reasons given by Emmett JA that the orders he proposes should be made. 2EMMETT JA: This appeal concerns orders made by the Medical Tribunal of New South Wales (the Tribunal) in relation to the respondent, Dr Leonard Philipiah (the Doctor), following complaints made about him by the appellant, the Health Care Complaints Commission (the Commission). Following a hearing, the Tribunal ordered that the Doctor be reprimanded. The Tribunal also ordered that the Doctor be suspended, together with orders as to the lifting of that suspension. Finally, the Tribunal determined that there should be no order as to costs. 3The Commission now appeals under s 162 of the Health Practitioner Regulation National Law (NSW) (the National Law) from the order for suspension, the orders relating to the lifting of the suspension and the decision not to order costs. Section 162 provides for an appeal to the Supreme Court against a decision of the Tribunal with respect to a point of law. 4The Commission made two complaints to the Tribunal about the Doctor's conduct. Complaint one was that the Doctor had been guilty of unsatisfactory professional conduct or professional misconduct, in that he demonstrated that the knowledge, skill or judgment possessed, or care exercised, by him in the practice of medicine was significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience. The particulars of Complaint one included that when the Doctor was working at Moruya Hospital he failed to obtain an adequate history of four particular patients (the Patients), failed to conduct an adequate examination of the Patients, failed to develop and implement an appropriate management plan for the Patients and failed to provide adequate follow-up review or advice in respect of the Patients. 5Complaint two was that the Doctor has a mental impairment, disability, condition or disorder that detrimentally affects or is likely to affect detrimentally his capacity to practise medicine. The particulars of Complaint two were that the Doctor suffers from bipolar affective disorder.
The Powers of the Tribunal 6The disciplinary powers of the Tribunal are set out in subdiv 6 of Div 6 of Part 8 of the National Law. Subdivision 6 consists of s 149 to s 149D. Under s 149A(1)(a), the Tribunal may reprimand a practitioner. Under s 149A(1)(b), the Tribunal may impose conditions on a practitioner's registration that it considers appropriate. Under s 149C(1), the Tribunal may suspend a practitioner's registration for a specified period or cancel the practitioner's registration if, relevantly, the Tribunal be satisfied that the practitioner is not competent to practise or is guilty of professional misconduct. 7Division 8 of Part 8 of the National Law consists of s 163 to s 163C. Section 163A(1)(b) relevantly provides that if an order be made imposing conditions on a person's registration in a health profession, and the order does not provide that it may not be reviewed by the Council, the person may apply to the Council for such a review. Under s 163B(1), the Council may make an order ending or shortening the period of the suspension and may make an order altering or removing the conditions to which the person's registration is subject. 8In its reasons for decision, the Tribunal recorded that the Doctor generally agreed that some of his assessments of the Patients could have been done better. It also recorded that the Doctor generally admitted that there was a failure by him with regard to recording fully the Patients' histories, the investigations he conducted and the follow-up that he recommended to them, although he contended that he did more than he recorded. In addition, the Tribunal found that the Doctor did not give proper consideration to several of the Patients' diagnoses. The Tribunal was of the view that the Doctor's treatment of two of the Patients constituted professional misconduct and, therefore, that the cumulative effect of the Doctor's conduct was professional misconduct. 9The Commission contended before the Tribunal that, in circumstances where there was both professional misconduct and evidence of the Doctor's impairment, the appropriate order was deregistration. However, the Tribunal considered that a finding of professional misconduct was not necessarily incompatible with a concurrent finding of impairment. It observed that no question of wilful conduct was raised. Having found impairment on the part on the Doctor, the Tribunal nevertheless concluded that he was competent to practise medicine. The Tribunal did not consider that the seriousness of the Doctor's misconduct, along with his impairment, should lead to deregistration. Rather, having found that he had been guilty of professional misconduct in relation to his clinical treatment of the Patients, and having found that he suffers impairment, the Tribunal considered that the appropriate order was to suspend his registration. 10At the hearing before the Tribunal, the Commission and the Doctor reached a consensus that it would be appropriate for the Tribunal to impose certain conditions on the Doctor's registration (the Agreed Conditions). Nevertheless, the Tribunal considered that there were some difficulties as to how it should fashion its orders, given that the Doctor was then practising medicine in New Zealand. The Tribunal observed that the Doctor was under the care of a psychiatrist in New Zealand and was on medication for his impairment. The Tribunal was of the view that, before resuming any work in New South Wales, the Doctor should obtain appropriate clearances. However, the Doctor had given no indication to the Tribunal as to when he was likely to want to resume practice in New South Wales. 11In its reasons for decision, the Tribunal recited its powers as set out in s 149A, including its powers under s 149A(1)(b) to impose the conditions it considers appropriate on the practitioner's registration. Somewhat curiously, the Tribunal then said as follows: "The Tribunal, therefore, suspends [the Doctor] for the period of time until the Medical Council of New South Wales as the Tribunal's nominated Review Body lifts the suspension." The Tribunal did not refer to s 149C(1), which expressly confers upon it the power to suspend for a specified period. 12The Tribunal then said that when the Doctor notifies the Medical Council of New South Wales (the Council) of his intention to practise in New South Wales, the Council "should consider" obtaining a conduct report from the New Zealand Medical Council and "should also obtain" an updated medical report from the Doctor's treating psychiatrist confirming his fitness to practise. The Tribunal said that, upon satisfaction of those "conditions", the Council could lift the Doctor's suspension, subject to further conditions the Council might impose to protect the public. The Tribunal expressed the view that "conditions should then be placed" on the Doctor's registration after the Council lifted the suspension, as the supervision and mentoring conditions would ensure that the Doctor was given full professional support and the health-related conditions would ensure he continued to be supported by a treating psychiatrist. The Tribunal referred to the Agreed Conditions and a copy of them, slightly modified by the Tribunal, was annexed to its reasons. 13The Tribunal also considered that, if the Doctor's suspension be lifted, his registration "should record" the Tribunal's finding that he suffers an impairment. The Tribunal said that the Council "will manage the [D]octor's impairment in accordance with Division 8 of Part 8 of the National Law". 14The Tribunal then dealt with the question of costs. It accepted that "it is usual for costs to follow the cause". However, the Tribunal concluded that, in the exercise of its discretion, there should no order as to the costs of the proceedings as the Doctor was "only just beginning to get his life in order ... has limited means and a wife and children to support ... [and] has no insurance cover in New South Wales". 15It is convenient to set out the Tribunal's orders, which were to the following effect: (1)The Doctor be reprimanded. (2)The Doctor be suspended. (3)The Doctor notify the Council three months before he wishes to resume practice in New South Wales. The Council, as the review body nominated by the Tribunal, should on receiving the Doctor's application: (a)obtain a conduct report from the New Zealand Medical Council; and (b)obtain an updated medical report from the Doctor's treating psychiatrist confirming his fitness to practise medicine. (4)Upon satisfaction of the above conditions, the Council, after consideration of the above reports, be authorised to lift the Doctor's suspension. (5)If the Doctor resume medical practice in New South Wales, he should, for the protection of the public, have conditions placed upon his practising certificate by the Medical Council under s 150(1)(b). A draft of suggested conditions that may be appropriate for the Council to impose was attached to the Tribunal's reasons for its decision. (6)Should the Doctor be permitted to resume practice in New South Wales, the Council must ensure his impairment is managed in accordance with its obligations, including its consideration under the National notification provisions. (7)The names of patients in respect of whose treatment the complaints were made and the names of family members of those patients and family members of the Doctor be suppressed. (8)There be no order as to costs.
The Appeal 16By its further amended notice of appeal filed on 9 May 2013, the Commission appeals from orders 2, 3, 4, 5, 6 and 8. The Commission contends that, in lieu of orders 2, 3, 4, 5 and 6, there should be an order that the Agreed Conditions, with some slight further modification, be imposed on the Doctor's registration. It also contends that the Doctor should pay the Commission's costs of the proceedings before the Tribunal. The Commission does not seek its costs of the appeal. 17The Tribunal suspended the Doctor's registration until the Council were to lift it. The Commission's essential complaint is that that suspension was indefinite, despite the Tribunal only having power, under s 149C(1) of the National Law, to suspend for a specified period. The Tribunal imposed that indefinite suspension despite the parties' consensus as to the Agreed Conditions. 18The Commission also contends that orders 3 and 4 were not authorised by subdiv 6 of Div 3 of Part 8 of the National Law and that it was beyond the Tribunal's power to make an order as to what the Council should do upon receiving notice from the Doctor that he proposed to return to practice. It says that it was also beyond the Tribunal's power to authorise the Council to lift a suspension if certain conditions were satisfied. 19The Commission contends that the Tribunal has no power to confer on the Council a power to lift a suspension imposed by the Tribunal, or to impose conditions qualifying the Council's power to shorten or end a suspension imposed by the Tribunal that differ from the terms of Div 8 of Part 8 of the National Law. It contends that where a suspension order made by a Tribunal provides that the Council may review it, the Council's powers to shorten or end that suspension are defined not by the Tribunal but by the terms of Div 8 of Part 8 of the National Law. 20The Commission also contends that order 5 was not authorised by the National Law and was otherwise outside the Tribunal's power. It contends that the Tribunal had no power to order that the Council should exercise powers under s 150 of the National Law, nor any power of "suggestion" when making consequential orders under subdiv 6 of Div 3 of Part 8. Under s 150, the Council must, if at any time it be satisfied that it is appropriate to do so for the protection of the health or safety of any person or if satisfied the action is otherwise in the public interest, suspend a registered health practitioner's registration or impose conditions on that registration. 21Finally, the Commission contends that order 6 was not authorised by subdiv 6 of Div 3 of Part 8 and was otherwise not within power. It says that the Council's obligations in relation to a practitioner's impairment are those imposed by the National Law whereas, by order 6, the Tribunal purported to order that the Council must ensure that the Doctor's impairment be managed in accordance with the Council's obligations.
Consideration 22A period is a portion of time. Specified denotes something definite or stated in detail. Accordingly, the phrase specified period means a period that is fixed, definite and certain. No fixed, definite or certain period is specified in order 2, so it does not impose a suspension for a specified period. 23Section 225 of the National Law provides that a national register must include certain information, including the following: "If the practitioner's registration is suspended, the fact that the practitioner's registration has been suspended and, if the suspension is based on a specified period, the period during which the suspension applies" (emphasis added) That appears to countenance the possibility of a suspension being otherwise than for a specified period, which would be the case if the Council exercised its power under s 150 of the National Law. The exercise of that power does not require that the suspension be for a specified period. However, no provision of the National Law authorises the Tribunal to suspend other than for a specified period. Order 2 was beyond the Tribunal's power. 24Orders 3 and 4 do not enable a specified period to be determined. They appear to be based on the premise that the Tribunal has a discretion to review and lift the suspension, which is inconsistent with suspension for a specified period. The Council has powers of review and a discretion to lift a suspension order under Div 8 of Part 8, if the Tribunal nominate the Council as the appropriate review body. However, the language of order 3 and 4 does not appear to be consistent with the language of Div 8. 25Orders 3 and 4 create a regime whereby the Council is to have a discretion to lift the suspension imposed by the Tribunal. That is different from the powers of review conferred on the Council by Div 8 of Part 8. Order 3 includes what appears to be a recommendation to the Council as to what it should do upon receiving notification that the Doctor wishes to return to practice. Order 4 provides that, on satisfying certain conditions, the Council, after its consideration of the reports referred to in the order, be authorised to lift the suspension. However, the Tribunal does not have power to confer on the Council the power to lift a suspension. The Council either has that power under Div 8 of Part 8 or it does not. If not, the Tribunal cannot confer it. If it already has the power, the order cannot confer an additional power. Accordingly, in purporting to confer review powers on the Council, orders 3 and 4 are beyond the Tribunal's power. Those orders also contemplate the exercise of powers that are beyond the review powers of the Council under Div 8 of Part 8. Orders 5 and 6 are also beyond the Tribunal's powers, for the reasons relied on by the Commission. 26In so far as the Tribunal purported to suspend the Doctor's registration for the period of time until the Council lifted the suspension, the Tribunal may have been intending to refer s 163A(1)(b) of the National Law. Section 163A(1)(b) provides that a person may apply to the appropriate review body for a review of a relevant order made in relation to the person. A relevant order includes an order made by the Tribunal that a person's registration as a registered health practitioner be suspended. Under s 163B(1)(b), if the order under review provides that it may be reviewed by the Council, the Council must conduct an inquiry into the application for review and may then, inter alia, make an order ending or shortening the period of the suspension concerned. That language assumes that the relevant suspension order is for a period that the Council, in its discretion, can either shorten or end. 27The effect of the orders sought by the Commission would be that the Doctor's registration would continue, but subject to the Agreed Conditions. The only difference may be that the Tribunal purported to give the Council a form of discretion in relation to the conditions that would be imposed, rather than simply imposing the Agreed Conditions. 28There may be something to be said for the proposition that, on a fair analysis of the Tribunal's orders, their effect was to order that the registration of the Doctor be suspended for a period to be fixed by the Council and to impose terms by reference to which that period should be fixed. However, there does not appear to be any scope for the application of the maxim certum est quod certum reddi potest (that which can be made certain is certain). It is the Tribunal that must make orders, not a delegate of the Tribunal such as the Council. 29The Tribunal exceeded its powers. Therefore, orders 2, 3, 4, 5 and 6 should be set aside. In lieu of those orders, there should be conditions imposed on the registration of the Doctor in terms similar to the Agreed Conditions. Subject to one matter, the Commission and the Doctor have agreed on further modifications to the Agreed Conditions to deal with inelegancies of syntax and to reflect the fact that they are imposed by the order of this Court. Subject to that matter, the Doctor does not oppose the making of such orders by this Court. 30The matter in dispute concerns two periods specified in the proposed conditions. Subject to minor stylistic change, the conditions proposed by the Commission are set out in the Schedule to these reasons. One of the conditions is that the Doctor agrees to advise and to obtain the approval of the Council before changing his place of practice, for a period of two years or for any further period deemed appropriate by the Council. Another condition is that the proposed supervisory arrangement remain in place for 24 months or for any further period deemed appropriate by the Council. 31The Doctor asks that those two periods be reduced to 12 months. The Doctor has not previously raised that matter. The periods of two years and 24 months were in the corresponding conditions of the Agreed Conditions and the modification of the Agreed Conditions made by the Tribunal. The Commission does not accept the proposed changes. 32The proposed conditions include the authorisation of the Council as an appropriate review body for the purposes of Div 8 of Part 8 of the National Law. It would be open to the Doctor to seek review if he wishes to do so after the period of 12 months has expired. In the circumstances, I do not consider that the periods should be changed.
Costs 33The Doctor accepted before the Tribunal that the Agreed Conditions should be imposed on his registration. Further, the Commission and the Tribunal appear to have accepted that there was no fault on the part of the Doctor so far as his incapacity was concerned. Those considerations may be relevant to the exercise of the discretion whether to make an order as to the costs of the proceedings in the Tribunal. However, that was not the reason advanced by the Tribunal. 34As indicated above, the proceedings involved two complaints against the Doctor. The Tribunal considered whether, when there was both professional misconduct and evidence of an impairment, deregistration was the appropriate order. The Tribunal held that a finding of professional misconduct is not necessarily incompatible with a concurrent finding of impairment, where both are made. It found that no question of wilfulness of conduct was raised by the definitions of either category of misconduct and that there was no inconsistency in that approach. 35The Tribunal accepted that "it is usual for costs to follow the cause" but determined that, "given the circumstances recited above", there should be no order as to costs. The Tribunal then referred specifically to the fact that the Doctor was only just beginning to get his life in order, had limited means and a wife and children to support, and had no insurance cover in New South Wales. Accordingly, the "circumstances recited above" appear to be the matters briefly summarised in the following paragraph. 36While making a finding of impairment, a matter conceded by the Doctor, the Tribunal concluded that the Doctor was competent to practise medicine, having regard to the nature of the impairment and the medical evidence as to his mental condition. The Tribunal balanced the evidence as to the Doctor's misconduct and impairment against the medical evidence from his treating psychiatrists, his attempts over two years to put his life in order, his attempts to search for insight into the effect of his condition and personality on his past medical practice and his present competency in delivering professional medical care. The Tribunal also referred to the Doctor's evidence of working successfully in a group practice in New Zealand and his evidence of being under the care of a psychiatrist in New Zealand and on medication for his impairment. 37At the commencement of the hearing before the Tribunal, the Tribunal observed that the only thing that the Doctor had admitted was that he had failed to keep proper records. In relation to Complaint one, counsel for the Doctor indicated that the Doctor admitted unsatisfactory professional misconduct in relation to the failures to record adequately but said that neither singly, nor aggregated, did they constitute professional misconduct. In relation to Complaint two, counsel for the Doctor said that it was admitted that there was a diagnosis of bipolar disorder but that there was significant evidence that would be tendered in that regard. 38Counsel for the Commission accepted that as a consequence of what had been said on behalf of the Doctor, the proceedings would be shortened. Nevertheless, the hearing took three days, although part of that time appears to have been taken by the unavailability of expert medical witnesses. It was not until the Doctor's written submissions, at the end of the hearing, that he admitted he suffered from bipolar affective disorder and conceded that he was impaired, in the sense that that condition was likely to affect detrimentally his capacity to practise the profession of medicine. 39The Doctor submitted to the Tribunal that during his short period at Moruya, over five days, he saw 105 patients. All 105 patients were reviewed and it was decided to conduct a further review in relation to 24 of those patients. Only three of those patients became the subject of complaint. Counsel for the Doctor submitted that an inference should be drawn that the Doctor was doing a number of things adequately and that he was not "out of control". The Tribunal observed that it must take into account the evidence of "the peer doctor, Dr Mackey" and that, if the Tribunal accepted Dr Mackey, it would find that there was unsatisfactory professional misconduct but not professional misconduct. After referring to the conclusions of Dr Mackey, the Tribunal expressed the view that the Doctor's treatment of two of the four patients in question was such as to attract a finding of professional misconduct and that therefore the cumulative effect of his conduct, isolated to an assessment of his clinical care, was professional misconduct. 40The question of costs of the proceedings before the Tribunal was not explored at great length in the course of submissions before the Tribunal. During final addresses, after referring to the possibility of there being professional indemnity insurance in relation to costs, the Tribunal said that it was not about to put a person trying to move forward in his life in difficult circumstances. The Tribunal expressed great admiration for someone who had lost 20 kg and then started to put himself through two or three years of psychiatric examination "to heal his life". After observing that the Doctor had a wife and children, the Tribunal asked what were "the circumstances about this costs application". Counsel for the Doctor indicated that the Doctor had professional indemnity insurance in New South Wales but that the proceedings before the Tribunal were not covered by the terms of any insurance. 41Counsel for the Doctor conceded that it would be usual to make an order for costs and that, if an order were made, submissions might be made to the Commission as to whether they wished to enforce that order. Counsel for the Doctor said "obviously" the "preference would be for an order not to be made". That was the extent of the argument as to costs before the Tribunal. 42As 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. 43As 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). 44It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made. 45The Doctor could have made admissions as to professional misconduct and as to the degree of impairment immediately after he was notified of the complaints. However, he chose not to do so. The normal price to be paid for a practitioner's disputing a complaint and losing is that, unless some disentitling conduct be established on the part of the Commission, the practitioner should bear the Commission's costs, not by way of penalty, but to compensate the Commission for the costs that it has incurred in prosecuting the proceedings in the public interest, over the opposition of the practitioner. 46The fact that the Doctor has made, and continues to make, an effort to overcome personal difficulties is not a rational basis for excusing him from the normal consequences of disputing allegations that are ultimately made out against him. In all of the circumstances, I consider that the exercise of the discretion on the part of the Tribunal miscarried. The direction made by the Tribunal that there should be no order as to costs should be set aside. 47The Tribunal was constituted by Judge Kavanagh, a deputy chairperson of the Tribunal, and three others. Judge Kavanagh has now retired. In the circumstances, it would be impracticable to remit the question of costs to the Tribunal. 48The Tribunal adduced evidence before the Court as to the costs incurred by it in the conduct of the proceedings before the Tribunal. The Tribunal incurred costs totalling $18,279.26, being disbursements of $11,037.65 and billable costs of the Commission's solicitor of $7,241.61. The Doctor does not dispute the reasonableness of those costs. In the circumstances, the appropriate course is to order that, in lieu of the direction made by the Tribunal, there be an order that the Doctor pay the Commission's costs in the sum of $18,279.26.
Conclusion 49The appeal should be allowed. Orders 2, 3, 4, 5, 6 and 8 made by the Tribunal on 28 June 2012 should be set aside. In lieu thereof, there should be orders by the Tribunal as follows: 1.The conditions set out in the following Schedule are imposed on the registration of the respondent. 2.The respondent pay the Commission's costs of the proceedings before the Tribunal in the sum of $18,279.26. 50BEECH-JONES J: I agree with Emmett JA and the orders his Honour proposes.
Schedule On gaining re-registration: (1)The Practitioner is to work only in a position approved by the Medical Council of New South Wales (the Council), such approval to be given if the following criteria are met: (a)The Practitioner is to practise only in a supervised group practice (where a group is defined as at least 3 other practitioners) or hospital position with at least one other practitioner (and/or senior support staff) always on site and a senior practitioner always available at least by telephone; or in a practice with one other practitioner (being the supervisor referred to below) always on site. (b)The Practitioner is not to work in locum positions or short term contract positions. (c)The Practitioner is not to undertake solo general practice work for two years or for such period as the Practitioner is required to undertake supervised medical practice in accordance with Supervision conditions (a)-(g) below. (2)The Practitioner agrees to advise and to obtain approval of the Council prior to changing his place of practice for a period of two years or for any further period deemed appropriate by the Council. SUPERVISION (1)The Practitioner is to nominate a supervisor, prior to gaining re-registration, to be approved by the Council, to monitor and review his clinical practice in accordance with Level 2 Supervision as contained in the Council's Policy on Supervision (PCH7.5). The approved supervisor is to be provided with a copy of the Council's Supervision Policy, a copy of the decision of the Tribunal dated 28 June 2012 and a copy of the decision of the Court of Appeal dated ****. The Practitioner is to be responsible for all costs associated with the supervision arrangement. (2)The Practitioner is to ensure that: (a)He and the supervisor meet on a fortnightly basis for at least one hour, the first meeting to occur within one month of being advised by the Council that the nominated supervisor has been approved. (b)Each meeting is to include (but is not limited to): an inspection of records kept in the course of his practice, discussion of the various legislative and regulatory requirements re medical record-keeping standards and attendant on proper medical practice; a review of work progress over the previous month with a focus on the various concerns raised by the Tribunal decision. (c)At each meeting, the supervisor completes a record of matters discussed at the meeting in a format prescribed or approved by the Council. (d)The supervisor forwards to the Council, on a monthly basis a Supervision Report in a format prescribed or approved by the Council. (e)The supervisor is authorised to inform the Council immediately if there is any concern in relation to the Practitioner's compliance with the supervision requirements, clinical performance, health, or if the supervisor relationship ceases. (f)In the event that the approved supervisor is no longer willing or able to provide the supervision required, details of a replacement supervisor are forwarded for approval by the Council within 21 days of the cessation of the original supervisory relationship. (g)That the supervisory arrangement remains in place for 24 months or for any further period deemed appropriate by the Council. MENTORING (1)Within 28 days of gaining re-registration, the Practitioner is to notify and provide for approval by the Council the name and professional address of a general practitioner in a senior position who has agreed to act as his professional mentor. The mentor is to be provided with a copy of "Guidelines for Mentors" as provided by the Council, a copy of the decision of the Tribunal dated 28 June 2012 and a copy of the decision of the Court of Appeal. The Practitioner is to ensure that: (a)He and the mentor meet on a monthly basis for at least two hours, the first meeting to occur within one fortnight of being advised that his nominated mentor has been approved. (b)He is to authorise the mentor to report, in an approved format, to the Council every 2 months about the fact of contact, and to inform the Council if there is any concern about his professional conduct, health or personal wellbeing. (c)He is to authorise the mentor to notify the Council of any failure to attend, termination of the mentoring relationship against the advice of the mentor, or any other matter the mentor considers appropriate. (d)He will meet with the mentor for an initial period of 24 months from the date of the first consultation and thereafter for such period as the Council may determine. (e)In the event that the approved mentor is no longer willing or able to continue as mentor, he is to nominate another mentor for approval by the Council within 28 days of the cessation of the original mentor relationship. (f)He is to be responsible for any costs associated with the mentoring process. HEALTH RELATED CONDITIONS Upon gaining re-registration: (1)The Practitioner is to attend for treatment by a general practitioner of his choice, at a frequency to be determined by him and the treating practitioner. He is to notify the Council of the name of his treating general practitioner within 4 weeks of registration and is to authorise the treating practitioner to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status. He is to be responsible for any costs associated with consulting the general practitioner. (2)The Practitioner is to attend for treatment by a psychiatrist of his choice, once a month or at a frequency to be determined by the treating psychiatrist. The Practitioner is to notify the Council of the name of his treating psychiatrist within eight weeks of registration and is to authorise the treating psychiatrist to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status. He is to be responsible for any costs associated with consulting a psychiatrist. (3)The Practitioner is to attend for treatment by a psychologist of his choice, fortnightly. The sessions with the psychologist are to deal with issues relating to improving his insight into matters raised in the Tribunal hearing including resolving past trauma and dealing with stress management. He is to authorise the treating practitioner to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status. He is to be responsible for any costs associated with consulting a psychologist. (4)The Practitioner is to continue taking any medication prescribed by his treating psychiatrist including mood stabilising medications. (5)The Practitioner is to attend for review by the Board-nominated psychiatrist as directed by the Council, at the Council's expense. (6)The Practitioner authorises the Council to forward copies of the decision of the Tribunal dated 28 June 2012, the decision of the Court of Appeal and any subsequent Board Review Interview or other reports and any other information relevant to his health and treatment, to the Council-nominated practitioners and his treating practitioners, supervisor and mentor. (7)The Practitioner is to notify the Council immediately of any change in treating practitioner so that copies of the material in the previous condition may be provided to them. APPROPRIATE REVIEW BODY These conditions may be reviewed by the Medical Council of New South Wales (and accordingly, the Medical Council of New South Wales is the appropriate review body for the purposes of Division 8 of Part 8 of the National Law).
Amendments 20 November 2013 - paragraph numbering corrected Amended paragraphs: Schedule 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 November 2013
Health Care Complaints Commission
Philipiah
(1974) 2 NSWLR 91
Appeal allowed; orders 2, 3, 4, 5, 6 and 8 of the Tribunal set aside; in lieu thereof conditions set out in the Schedule imposed on the respondent's registration and the respondent ordered to pay the Commission's costs before the Tribunal fixed at $18,279.26.