This is a revised version of oral reasons delivered at the close of the hearing on 6 July 2016.
The Tribunal has before it an application that no inquiry be conducted in this matter. The matter involves an application for disciplinary findings and orders by the Health Care Complaints Commission brought under the Health Practitioner Regulation National Law (NSW), No 86a (the National Law) against Dr Ian Rafter (the respondent), commenced on 8 January 2016.
The principal context of the application is a recent history of impairment on the part of the respondent. The impairment is a significant one deriving from a stroke that occurred on 28 January 2014.
There is substantial material in the folder of documents relating the effect of the stroke on the respondent's cognitive function. The respondent was suspended from practice by the Medical Council effective 15 August 2014. I have been informed today that he has now requested the Australian Health Practitioner Regulation Agency (the national authority) to remove his name from the register pursuant to s 137 of the National Law. The national authority is expected to take the action requested in due course. To enable that step to be taken the Medical Council lifted its suspension with effect from 30 June 2016, and imposed a condition on his registration that he not practise medicine. I have been advised that this is a formal step required to enable the national authority to proceed to exercise its power to remove his name from the register.
Therefore in those circumstances the respondent can be regarded, for practical purposes, as having ceased to be a registered health practitioner.
The application that is now made by the Health Care Complaints Commission is that it be permitted to withdraw the complaint before the Tribunal. Crucially, in that regard, it is necessary for the Tribunal to form the opinion that it is not in the public interest for the inquiry to continue. The application is made under the pressure of the matter being listed to proceed to hearing in the Tribunal in five days' time, 11 July 2016.
The relevant powers of the Tribunal are given by cl 12 of Sch 5D of the National Law, i.e:
12 Certain complaints may not be heard [NSW]
(1) A Committee or the Tribunal may decide not to conduct an inquiry, or at any time to terminate an inquiry or appeal, if -
(a) any of the following circumstances apply -
(i) a complainant fails to comply with a requirement made of the complainant by the Committee or the Tribunal;
(ii) the person about whom the complaint is made ceases to be a registered health practitioner or student;
(iii) the complaint before the Committee or the Tribunal is withdrawn; and
(b) in the opinion of the Committee or the Tribunal it is not in the public interest for the inquiry or appeal to continue.
(2) A Committee or the Tribunal must not conduct or continue any inquiry or any appeal if the registered health practitioner or student concerned dies.
(3) The power conferred on a Committee or the Tribunal by this clause may be exercised by the Chairperson of the Committee or the member of the Tribunal presiding and, if exercised by the Chairperson or member, is taken to have been exercised by the Committee or the Tribunal.
This application is made under cl 12(1)(b). In relation to the considerations bearing on the exercise of the power, my attention was drawn to the cases of Health Care Complaints Commission v BQB [2014] NSWCATOD 157, Health Care Complaints Commission v Perry [2015] NSWCATOD 76, Health Care Complaints Commission v Sarfraz [2015] NSWCATOD 75 and Health Care Complaints Commission v Khan [2014] NSWCATOD 83.
The material placed before the Tribunal is found in the folder of documents filed in support of the application plus three exhibits filed today. Complaint One was a complaint of impairment based on the health event of 28 January 2014. Complaint Two was consequential on such a finding, and asserted that the impairment rendered the respondent not competent to practise medicine because of insufficient mental capacity, knowledge and skill. Complaint Three was that he was not suitable to hold registration as a medical practitioner. It was founded primarily on his treatment of a Patient A on 21 February 2013 and a Patient B on 25 March 2013, times earlier that the events referred to in Complaint One. Both patients complained of rude and aggressive behaviour towards them. There was also a particular alleging that he had been deliberately dishonest in giving false sworn evidence to the District Court on 28 and 29 May 2014. This event postdates the serious health event of 28 January 2014.
Exhibit 1 is a statutory declaration from the respondent as to the steps that he has taken in relation to the removal of his name from the register. The second is an affidavit of the solicitor for the respondent attaching a number of medical reports as to the respondent's present circumstances, condition and recent history and the nature of the impairments from which he suffers. And Exhibit 3 is a statement from the Medical Council referring to the steps it has taken in relation to his suspension to meet a concern of the national authority in that regard and noting the conditions that are placed on his registration pending this decision.
I am satisfied that the material justifies the Tribunal exercising its discretion that it is not in the public interest for the inquiry to continue.
A critical point is that proceedings that are withdrawn are not proceedings that finally settle the rights of the parties as between each other or in relation to the matters the subject of the complaint. So it is open, if for some reason the public interest required it, for the applicant to recommence the complaint; or, equally, to be heard if there was to be a circumstance under which the respondent sought re-registration. The matters the subject of the present application could be canvassed in that context. .
I agree with the submission that there is no risk to the health and welfare of the public that arises from taking the steps that are recommended today. The patient complaints fall in a narrow compass. The primary complaint is one of impairment. There is no likelihood that the respondent will ever return to practice in light of the steps now being taken. In addition, there are, obviously, a range of considerations of cost efficiency and convenience, both for the tribunal and for the parties which support taking an action of this kind in the circumstances.
There is a question as to the proper composition of the Tribunal for dealing with an application of the present kind. In that regard I take note of the reasons for decision given by Deputy President Boland, ADCJ in the case of Health Care Complaints Commission v Singh [2016] NSWCATOD 85 handed down on 29 June 2016. The position appears clearly to be that proceedings of this kind fall on the interlocutory side of the interlocutory/non-interlocutory jurisdictional divide. It is permissible in those circumstances, for the reasons given in that decision, for the tribunal's functions to be exercised by a member of an appropriate status. I satisfy that requirement. In any event I had already been appointed as the presiding member in this matter which was otherwise due to proceed in the Tribunal on 11 July 2016. That may be sufficient to bring my exercise of power within the composition requirement found in cl 12(3), without looking for other heads of power, though the Tribunal as a whole had not formally convened.
I have raised with the parties the matter of keeping informed any complainants of the steps that have been taken today. This comment applies to the two patients connected with the third complaint and the referring judge in the case of the dishonest evidence allegation. I have been informed that one of the patients is now deceased, and steps will be taken to inform the other patient of the steps that have occurred.
[2]
Orders
1. No inquiry be conducted
2. The tribunal consents to the complaint being withdrawn
3. The application is dismissed pursuant to s 55(1)(a) of the Civil and Administrative Tribunal Act 2013
4. The respondent is to pay the applicant's costs of the proceedings as agreed or assessed and
5. Direct that the hearing dates be vacated.
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
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Decision last updated: 25 July 2016