Health Care Complaints Commission v Robinson - [2022] NSWCA 164 - NSWCA 2022 case summary — Zoe

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Health Care Complaints Commission v Robinson

[2022] NSWCA 164

Court of Appeal (NSW)|2022-05-03|Before: Leeming JA, Kirk JA

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2022-05-03

Before

Leeming JA, Kirk JA

Catchwords

[2016] NSWCA 229 Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300
[1993] HCA 6 Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246
[1981] HCA 20 Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd [No 2] [2013] HCA 44
87 ALJR 1159 Chen v Health Care Complaints Commission (2017) 95 NSWLR 334

Source

Original judgment source is linked above.

Catchwords

[2016] NSWCA 229 Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300[1993] HCA 6 Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246[1981] HCA 20 Castle Constructions Pty Ltd v Sahab Holdings Pty Ltd [No 2] [2013] HCA 4487 ALJR 1159 Chen v Health Care Complaints Commission (2017) 95 NSWLR 334[2017] NSWCA 186 Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767[1984] HCA 47 Council of the New South Wales Bar Association v EFA (a pseudonym) (2012) 106 NSWLR 383(2003) 77 ALJR 1088 Elzahed v State of New South Wales (2018) 97 NSWLR 898[2018] NSWCA 103 Ford v Inghams Enterprises Pty Ltd (No 3) [2020] FCA 1784 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478[2002] HCA 22 Hall v The Nominal Defendant (1966) 117 CLR 423[1976] HCA 6 Livers v Legal Services Commissioner (2020) 103 NSWLR 738[2008] HCA 42 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427

Judgment (9 paragraphs)

[1]

The application to the Tribunal

By its Application the Commission identified three complaints. By Complaint 1 the Commissioner asserted that each of:

the auscultation of Patient A's chest;
the physical examination of Patient A's breasts;
the performance of the abdominal examination; and
the questioning of Patient A as to her menstrual cycle and whether she had had a Pap smear; was not clinically indicated and was inappropriate and justified a finding of unsatisfactory professional conduct within the meaning of s 139B (1)(a) and/or (l) of the National Law, or, alternatively, that any combination of those activities justified such a finding. The Commission expressly particularised the performance of the breast examinations as: "inappropriate conduct of a sexual nature towards Patient A …" (Particular 4)

By Complaint 2 the Commission asserted that the respondent was guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(b) of the National Law by contravention of a provision of the Health Practitioner Regulation (New South Wales) Regulation 2016 (by failing adequately to record in his clinical notes that he had performed the breast examination and by failing to disclose, in his report to Patient A's general practitioner, that he had done so).
By Complaint 3 the Commission asserted that the respondent was guilty of professional misconduct within the meaning of s 139E of the National Law because the conduct described was sufficiently serious (either in its individual components, or any combination of those components) to justify suspension or cancellation of his registration as a medical practitioner. The Commission accordingly sought "protective orders" of the kind the Tribunal is empowered, by s 149 of the National Law, to make, where it has found a complaint proved or admitted in writing.
"Unsatisfactory professional conduct" and "professional misconduct" are, relevantly, defined in, respectively, ss 139B(1) and 139E of the National Law as follows: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally (1) "unsatisfactory professional conduct" of a registered health practitioner includes each of the following - (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. (b) A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law, or under NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. … (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 139E Meaning of "professional misconduct" For the purposes of this Law, "professional misconduct" of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
Consequential orders available to the Tribunal under s 149 of the National Law where it finds that a complaint of unsatisfactory professional conduct or professional misconduct has been proved or admitted in writing include caution or reprimand (s 149A(1)(a)); an order for counselling or psychiatric treatment (s 149(1)(c)); imposition of a fine (s 149B(1), subject to some limitations stated in subs (2)); and, where the complaint found proved or admitted is of professional misconduct, suspension or cancellation of registration as a medical practitioner (s 149C).

[2]

The proceedings in the Tribunal

It was necessary that there be an inquiry into the complaints conducted in the "Health Practitioner List" of the Occupational Division of the Tribunal. That inquiry involved, essentially, four steps: 1. determination of the facts relevant to the complaints, and, in particular, resolution of any disputed factual allegations; 2. determination of whether the facts found established that the respondent's conduct (whether by the individual components or any combination of those components) constituted unsatisfactory professional conduct (as defined in s 139B(1)(a), (b) and (l); and 3. if the Tribunal found that the facts established unsatisfactory professional conduct, determination of whether that conduct was sufficiently serious to justify suspension or cancellation of the respondent's registration and therefore constituted professional misconduct; and 4. if the Tribunal found that the facts established either unsatisfactory professional conduct or professional misconduct, determination of what, if any, consequential orders should be made.
The Tribunal, with the agreement of the parties, decided to conduct the inquiry in two stages. On 8 May 2020 it ordered that the matter be "listed for hearing in relation to Stage 1" commencing on 17 August 2020, and gave directions for filing and service of documents "in relation to Stage 1".
The orders and directions did not expressly identify what was and what was not included in "Stage 1". It may be assumed that the parties understood that what was envisaged as "Stage 1" was determination of whether the respondent had engaged in the conduct alleged in the Application (or any of it), and, if so, whether that conduct constituted unsatisfactory professional conduct or professional misconduct. In EFA, in relation to proceedings under legislation governing the legal profession, this Court said: "44. As is usual in disciplinary proceedings in the Tribunal, the hearing was conducted in two stages. The first is directed to factual determination of the allegations made, and to the proper characterisation of the conduct in question (professional misconduct, unsatisfactory professional conduct, or neither). The second stage (which only occurs if a finding of professional misconduct or unsatisfactory professional conduct is made) is concerned with consequential orders, and, particularly, what (if any) orders ought to be made under s 299 or s 302 of the [Legal Profession Uniform Law (NSW)]."
There has been no suggestion that, in this case, "Stage 1" was intended to be otherwise than as stated in [44] of EFA. What occurred in the Tribunal, and the Tribunal's Reasons, support the conclusion that "Stage 1" of the proceedings was intended to deal with the resolution of any factual disputes, and, importantly, whether any conduct found to have been committed by the respondent constituted either unsatisfactory professional conduct or professional misconduct.
While the bifurcated two stage procedure has, it seems, been generally adopted in and by the Tribunal, and is plainly a convenient means by which the Tribunal deals with the disciplinary issues presented to it for determination, it is not a statutory requirement, nor does it have statutory recognition. As will be seen below, it is capable of giving rise to some complexity.
The "Stage 1" proceedings in the Tribunal occupied 12 non-consecutive hearing days. That the respondent had conducted the breast and abdominal examinations was not in issue. Whether there was any, or any sufficient, clinical justification for the breast examinations was in issue. Initially, the respondent maintained that there was such a clinical basis. Expert evidence was given by a specialist ophthalmologist (Dr Campbell) that, in his opinion: "…there are no circumstances in which an ophthalmologist would be expected or required to perform a breast examination.") and: "… an ophthalmologist would not generally be expected or required to perform an abdominal examination."
Dr Campbell went on to say: "I can conceive of no situation in which an ophthalmologist in private practice would be required to perform breast examination in a young woman and I am therefore of the opinion that Dr Robinson's conduct was significantly below the expected standard. I am strongly critical of this aspect of his conduct. … It would have been reasonable to inquire if [Patient A's] headaches were related to her menstrual cycle, as there is a well-recognised association between migraine and menstruation, but the question as to whether she was menstruating at the time of the examination was, in my opinion, irrelevant and inappropriate. Dr Robinson's conduct fell below the expected standard. … There was no indication for palpation of [Patient A's] abdomen underneath her clothing and in my opinion Dr Robinson's conduct fell below the expected standard. An ophthalmologist would not generally examine a patient's abdomen, especially if there were no abnormal signs in the visual system. … Whether [Patient A] had ever had a Pap smear was irrelevant to her condition and would not have been asked by a practitioner of an equivalent level of experience; Dr Robinson's conduct was below the expected standard in this regard."
Dr Campbell also concluded, for reasons that he gave, that there was no basis for suspicion that Patient A may have had a malignant orbital tumour that had spread from elsewhere in her body (an explanation for the examinations that had been proffered by the respondent). He again expressed the view that the respondent's conduct fell significantly below the standard expected of a practitioner of his level of training and experience and repeated his strong criticism of the respondent's conduct.
The respondent maintained that the examinations were clinically indicated, although, by the conclusion of the inquiry, he accepted that auscultation of the breast, digital massage of the breast and abdominal examination were all "inappropriate"; he denied that his conduct was improper or unethical (s 139(1)(l) of the National Law). He expressly acknowledged that his conduct demonstrated that his knowledge, skill, judgment and care were significantly below expected standards, and therefore constituted unsatisfactory professional conduct within s 139(1)(a). That concession was plainly (if not expressly) accepted by the Tribunal. Complaint 1 was, accordingly, made out.
An important aspect of the Commission's case was, as expressed in Particular 4 to Complaint 1, that in performing the breast examinations the respondent "engaged in inappropriate conduct of a sexual nature towards Patient A" and that this was so regardless of whether or not the motivation for the conduct was personal sexual gratification. This is central to the appeal.

[3]

The Tribunal's findings

Although the Tribunal accepted that there was insufficient clinical indication for the breast examination (as eventually acknowledged by the respondent), it declared itself unable to go the next step and find that there was no clinical reason for the examinations. It found that the respondent had failed to give Patient A sufficient information to enable her to give informed consent for the examinations.
Having regard to the grounds of appeal, the salient paragraphs of the Tribunal's Reasons are the following: "222 We have observed Dr Robinson whilst he gave his oral evidence, and considered the content of same together with his written evidence. We cannot, on the evidence before us, be satisfied on the balance of probabilities, as applied by us to this allegation, that Dr Robinson conducted an examination 'of a sexual nature'. We understand this Particular to cover the proposition put to Dr Robinson in cross-examination that he conducted the examination to satisfy his own sexual need, that he conducted the examination to obtain gratuitous sexual satisfaction. 223 As we understand, part of the [Commission's] case is that the breast of a woman is an inherently sexual part of her body. Any touching of that part by a medical practitioner without the informed consent of the patient AND without there being a proper medical clinical purpose for touching the breast, must be seen as for an improper purpose. If the examination was not clinically indicated then the only available conclusion in such a circumstance is that the touching was to satisfy the practitioner's sexual urge, or for him to obtain sexual gratification from same. 224 Such a statement has some logical attraction as a generality; however, in this case we do not accept that it applies to Dr Robinson. We have made our findings about the way in which he gave his evidence and the content of same. We have concluded that we are not satisfied there was no possible medical purpose in Dr Robinson examining Patient A's breast and abdomen. We are unable to find that the examination was conducted by Dr Robinson, either in part or in its entirety, for his own personal gratification. 225 We do not accept that even if there was no medical purpose in conducting the breast and abdominal examination it must follow that the only other purpose must be for sexual gratification. In this case we accept that Dr Robinson really did see the examination as warranted for medical purposes and he also was unaware, through lack of knowledge or personal awareness, that it was at that time inappropriate for him to have conducted the examination. 226 We accept that a breast examination by a medical practitioner, who conducts it as a result of his incorrect understanding about the medical efficacy of same, could be an examination with no real medical purpose. It could give rise to a finding of professional misconduct. That could be so even where there was clear evidence that the examination was performed for no personal sexual gratification, or like intent, of the medical practitioner. 227 For us to conclude that the examination was for personal sexual gratification, we would have to be satisfied, on the requisite standard, that Dr Robinson knew that he should not have been conducting the examination; that he purposefully used his position as a medical practitioner to manoeuvre Patient A to a place in his rooms which was out of sight of other staff or other detection; that he purposefully provided Patient A with a vague and frightening explanation for what she was about to experience; that he used the power imbalance, of which he was aware, to manipulate Patient A for his own sexually motivated purpose." Although it did not say so expressly, it may be inferred that the Tribunal was not prepared to reach the satisfaction stated in [227].
With respect to the respondent's questioning of Patient A about her menstrual cycle, the Tribunal noted that the respondent conceded that it was inappropriate to ask the question, but nevertheless denied that it was not clinically relevant. The Tribunal noted also that the respondent conceded that his questioning of Patient A about whether she had ever had a Pap smear was inappropriate.
With respect to Complaint 2, the Tribunal found that the information provided to Patient A's general practitioner was "less than adequate" to advise that breast and abdominal examinations had been performed. It found, however, that the respondent's clinical notes "give rise to a clear indication that a chest and abdominal examination was performed". It is not clear, but that may have been a rejection, or partial rejection, of Complaint 2.
Finally, turning to Complaint 3, in answer to the Commission's contention that the respondent's conduct was sufficiently serious to justify suspension or cancellation of the respondent's registration and therefore constituted professional misconduct, the Tribunal said: "259 Nonetheless we have not been able to find that Dr Robinson was pursuing his own sexual gratification or purposes in conducting the examinations of Patient A's breasts and abdomen. The question remains as to whether, given the findings we have made, those findings 'amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration'."
The Tribunal then made the following findings: "(1) …the examination was not clinically indicated [this was a reference to both the breast and abdominal examinations]. (2) …Dr Robinson did believe at the time of the investigation that it was clinically indicated [this was a reference to the breast examination]. (3) …Dr Robinson was not motivated by sexual gratification. We do not accept that, if the examination was not objectively clinically indicated, then it must follow that any such examination of the breast or abdomen of Patient A had a sexual purpose. (4) …[Dr Robinson's] breach of s 139B(1)(a) is serious because of the impact the examination had on Patient A and the possibility that it could have long lasting impacts upon her mental health. Further, an examination by a medical practitioner which is not clinically indicated, may have impact upon the public's confidence in the medical practitioners at large. These latter considerations are matters best addressed in the Stage 2 portion of this hearing, after we have heard from the parties and considered their evidence and submissions. (5) …Dr Robinson should not have conducted the breast and abdominal examination himself, as he now concedes. (6) …the consent obtained by Dr Robinson from Patient A could not be regarded as 'informed' for the reasons we have stated." (The expression "breach" of s 139B(1)(a) was and is inapposite, but was borrowed directly from written submissions made by the Commission)
The Tribunal then observed that the balance of the questions posed by the Commission were matters "better addressed in Stage 2 of this hearing". The Tribunal went on to consider whether the established (and admitted) conduct of the respondent was of a sufficiently serious nature to justify suspension or cancellation of his registration and concluded: "…the conduct falls slightly short of meeting that criteria [sic]." The Tribunal therefore concluded that Complaint 3, of professional misconduct, was not made out to its satisfaction.
The Tribunal concluded its Reasons with the following: "264 …we accept that the [Commission] was justified in pursuing this case against Dr Robinson. Different minds will have different levels of suspicion and conviction about the true motivation Dr Robinson may have had in conducting the breast and abdominal examination of this young woman, Patient A. However, suspicion falls well below the level of satisfaction we need to have as the Tribunal, in order to make the finding that Dr Robinson conducted the examinations for his own sexual gratification. Our conclusion is that the level of satisfaction was insufficient to establish, on the applicable standard, a case which finds Dr Robinson conducted his examination for a purpose other than a medical purpose. That conclusion is based upon the assessment of multiple aspects of the evidence before us. The determination cannot be made upon the establishing of only one possible indicator of a non- medical purpose."
The Tribunal then listed the matter for directions for the purpose of fixing a hearing date for the "Stage 2 hearing". That hearing has not yet taken place.

[4]

The status of the appeal: jurisdiction of this Court

As indicated above, an issue arose concerning the status of the appeal; more accurately stated, the issue was whether the Commission appeals as of right, or needs leave to do so. That is rather more complex than at first appears.
Rights of appeal against decisions of the Occupational Division of the Tribunal are derived from cl 29 of Schedule 5 of the Civil and Administrative Tribunal Act 2013 (NSW) (the "CAT Act"). Subclause (2)(b) of cl 29 confers a right of appeal to the Supreme Court, in accordance with the provisions of cl 29, on a party to proceedings in the Tribunal in which a "profession decision" is made. A "profession decision" is defined in subcl (1) by reference to the legislation with respect to which the decision is made and includes, in par (d), decisions for the purposes of the National Law (with the exception of one presently irrelevant class of decisions). By subcl (4)(b), in the case of a "non lawyer appeal" (that is, any appeal other than an appeal for the purposes of the Legal Profession Uniform Law (NSW) ("LPUL")) the appeal lies as of right on any question of law, or, with the leave of the court, on any other grounds. By subcl (6) leave is required for an appeal against: (a) an interlocutory decision of the Tribunal; (b) a decision made with the consent of the parties; and (c) a decision as to costs. (By s 48 of the Supreme Court Act 1970 (NSW) an appeal from the Tribunal where, as in this case, it is constituted by a judge is assigned to this Court.)
"Interlocutory decision of the Tribunal" is defined in s 4 of the CAT Act as "a decision made by the Tribunal under legislation concerning any of" nine specified matters, and, somewhat unhelpfully "(i) any other interlocutory issue before the Tribunal".
Given that the Commission's Application to the Tribunal was for "protective orders" under ss 149A, 149B or 149C of the National Law, it is tempting to see the decisions made by the Tribunal that the respondent was guilty of unsatisfactory professional conduct but had not been shown to be guilty of professional misconduct as interlocutory. That, however, has not been the view previously taken by this Court. In Tangsilsat v Council of the Law Society of New South Wales [2019] NSWCA 144, White JA, with whom Bell P (as the Chief Justice then was) and Macfarlan JA agreed, held (at [13]) that an appeal under cl 29(2)(b) (with respect to a decision made under the LPUL) was not an interlocutory decision but an "ancillary decision". In Livers v Legal Services Commissioner (2020) 103 NSWLR 738; [2020] NSWCA 317, also with respect to a decision under the LPUL, McCallum JA, Ward CJ in Eq (as the President then was) and White JA adopted that position.
For completeness, it should be mentioned that s 165L of the National Law makes specific provision for the Tribunal, during any proceedings under the National Law, to make specified "interlocutory orders". Whether "interlocutory orders" are different from "interlocutory decisions" does not arise, because the decisions here in question are not of the kind for which s 165L makes provision.
An "ancillary decision" of the Tribunal is defined in s 4 of the CAT Act as: "…a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including - (a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and (b) a decision concerning the awarding of costs in proceedings."
A decision made at "Stage 1" of an inquiry, that a health practitioner is guilty, or not guilty, of unsatisfactory professional conduct or professional misconduct, fits comfortably into the language of the chapeau to the definition of "ancillary decision", as a decision that is "preliminary to" a decision determining proceedings, the "decision determining proceedings" being a decision to dismiss an Application, or a decision to make an order or orders of the kind authorised by s 149 of the National Law. There are, however, indicators that that may not have been what the legislature (or the draftspersons of the legislation) had in mind. Apart from the definition in s 4, the term "ancillary decision" appears only once in the CAT Act (in a way that is presently irrelevant) and once only in the National Law, in subs (5A) of s 165B. Section 165B deals with the constitution of the Tribunal for the purpose of proceedings under the National Law. By subs(2), when conducting an inquiry under the National Law with respect to a medical practitioner, the Tribunal is to be constituted by (a) a senior judicial officer (as defined in s 165); (b) two registered medical practitioners; and (c) one lay person selected for appointment from a panel of lay persons nominated by the relevant Minister as occasional members of the Tribunal.
Subsection (5A) of s 165B provides: "The Tribunal, when constituted to make an ancillary decision or an interlocutory decision within the meaning of the [CAT Act] is to be constituted by the Tribunal List Manager or the member referred to in subsection (2)(a)." The "member referred to in subsection (2)(a)" is, in the case of proceedings with respect to a medical practitioner, a senior judicial officer. The reference to "the Tribunal List Manager" is a reference to a member of the Occupational Division of the Tribunal designated under cl 11(1) of Sch 5 of the CAT Act to be the List Manager of the Health Practitioner List, (required by subcl 10(1) to be created in the Occupational Division) and who, by subcl 11(2), is required to be an Australian lawyer of at least 7 years' standing.
The requirement of subs (5A) of s 165B that, when constituted for the purpose of making an "ancillary decision" or an "interlocutory decision", the Tribunal be constituted by a single member, being either the Tribunal List Manager or a senior judicial officer, is to be contrasted with the requirement in subs (2), that, when conducting an inquiry under the National Law, the Tribunal is to be constituted so as to include a senior judicial officer and two registered medical practitioners. Section 165B(5A) makes it unlikely that a decision that a health practitioner is, or is not, guilty of unsatisfactory professional conduct or professional misconduct was intended to be classified as either ancillary or interlocutory. If such decisions were either "ancillary" or "interlocutory" subs (5A) would dictate that they be made by a senior judicial officer sitting alone, or the List Manager sitting alone.
In Tsangsilsat the Tribunal had, as in this case, adopted a two stage procedure. At the conclusion of "Stage 1" the Tribunal found Ms Tsangsilsat guilty of professional misconduct (defined in the LPUL in similar terms to s 139E of the National Law) and had deferred consideration of consequential orders to a "Stage 2" proceeding. Before the "Stage 2" proceeding could take place, Ms Tsangsilsat sought (by application for leave to appeal) to challenge the finding of professional misconduct. The Court held that leave was not required because the finding was an ancillary decision. I would be prepared to assume that this Court considered that the decision was an "ancillary" one because it was, in the language of the chapeau to the definition, "preliminary to … a decision determining proceedings" (the "decision determining proceedings" being orders consequential upon the finding of professional misconduct). An important point of distinction between Tsangsilsat and the present case is that the former involved a hearing into a complaint under the LPUL; that legislation contains no equivalent of s 165B(5A). The reasoning in Tsangsilsat does not persuade me that, for the purposes of the National Law, a finding of unsatisfactory professional conduct or professional misconduct (or otherwise) is an ancillary decision.
Further support for the view that decisions of that nature are not "ancillary" is to be derived from the two examples of ancillary decisions given in the definition - decisions as to jurisdiction and decisions as to costs. Each is a decision of a kind eminently suitable to be committed to a Tribunal List Manager, who must be legally qualified, or a senior judicial officer, and not to a Tribunal predominantly made up of members not legally qualified. Also not to be overlooked are the opening words of subs (5A): "The Tribunal, when constituted to make an ancillary decision or an interlocutory decision …". These words signify that the Tribunal might be constituted, usually prior to the substantive hearing, for the purpose of the determination of an issue (to use a neutral term) collateral to the substantive issue. They do not fit easily into the notion of a Tribunal constituted for the purpose of deciding whether a health practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. In any event, in this case, the Tribunal is properly to be seen as constituted for the purpose of deciding what orders ought to be made on the Commission's Application - whether that be dismissal of the Application, or any of the orders made available by s 49. That that is so is not affected by the fact that the Tribunal adopts the two-stage procedure.
It seems clear that, in constructing the appeal rights set out in cl 29 of Sch 5, the drafters of the legislation did not have in contemplation the two stage procedure that has been adopted by the Tribunal, which, as mentioned above, has no statutory recognition. That is why there is no express provision in cl 29 for appeal against a decision made in Stage 1 of an inquiry.
In my opinion, neither of the decisions of the Tribunal, that the respondent was guilty of unsatisfactory professional conduct, but was not shown to have been guilty of professional misconduct, was either an ancillary or an interlocutory decision.
That conclusion directs attention back to cl 29. Each decision was a "professional decision", as to which a right of appeal is conferred by subcl (2)(b), subject to subcl 4(b).
My conclusion, applying the language of cl 29, is that each of the decisions made by the Tribunal - (i) that the respondent was guilty of unsatisfactory professional conduct and (ii) that the complaint of professional misconduct was not made out to its satisfaction - is, within the meaning of cl 29(1)(d), a decision for the purposes of the National Law and therefore subject to the appeal rights conferred by subcl (2)(b), and further subject to the restrictions imposed by subcl (4)(b) - that is, an appeal as of right so far as the appeal raises a question of law, but requiring leave for any other ground. So far as the grounds advanced by the Commission raise questions of law, the appeal is as of right.
By subcl (7) of cl 29, the court in a "non lawyer appeal" may decide to deal with the appeal by way of a new hearing if it considers that the grounds advanced warrant taking that course and may admit such fresh or substituted evidence as it considers appropriate in the circumstances.

[6]

Ground 1

Two discrete aspects of ground 1 are identified. Although not put in this way, ground 1(a) may properly be seen as the assertion of a failure by the Tribunal to exercise jurisdiction because it failed to advert to and deal with "a substantial, clearly articulated argument relying upon established facts": Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24]; AAI Trading as GIO as Agent for the Nominal Defendant v McGiffen (2016) 77 MVR 348; [2016] NSWCA 229; Day v SAS Trustee Corporation [2021] NSWCA 71 at [37]. I accept that ground 1(a) raises a question of law.
Ground 1(b) asserted error of law by the Tribunal in failing to take into account a mandatory consideration, that being an objective assessment of how a patient in the position of Patient A could have perceived (or "experienced") the breast and abdomen examinations when performed by an ophthalmologist. On its face, ground 1(b) also raised a question of law, but could only succeed if the Commission was correct in characterising the consideration on which it relied as "mandatory".
The relevant established facts were: (1) that the respondent had conducted the breast and abdomen examinations of Patient A; (2) that those examinations were not sufficiently clinically indicated and were inappropriate; (3) that the respondent's conduct constituted unsatisfactory professional conduct; (4) that the respondent believed that the examinations were clinically indicated; and (5) that the respondent's conduct was not sexually motivated.
The question for the Tribunal was, in terms of s 139E, whether the respondent's conduct was sufficiently serious to justify suspension or cancellation of his registration as a health practitioner. That question is distinct from whether such an order should be made.
From the outset of the inquiry, although the Commission did not initially discount the suggestion that the respondent's conduct was sexually motivated, it propounded the proposition that the breast examinations were "inappropriate conduct of a sexual nature" whether or not the respondent engaged in that conduct for reasons of personal sexual gratification. That, the Commission said, was because: "(a) there was no clinical reason to conduct a breast examination, (b) a woman's breasts are inherently sexual and (c) so conducting a breast examination when there was no clinical reason to do so was conduct that is sexual in nature". In the Tribunal, counsel described that as the Commission's "minimum case".
The Presiding Member of the Tribunal understood the case the Commission was making. He said: "So just so I understand this, you say that it is not necessary for the [Commission] to establish that he had some ulterior motive, that is derive sexual pleasure from what he is doing, you say it follows axiomatically from the fact that the examination, if it took place, was inappropriate and the examination of the patient's breasts is inherently sexual and so irrespective of what he had in his mind, whether he was deriving some ulterior pleasure from it is irrelevant. The consequence follows from those two facts that you were seeking to establish that it was a sexual act. Am I understanding it?"
Counsel for the Commission responded by saying that sexual motive was not irrelevant, and that if it existed, it would elevate the seriousness of the conduct, but sexual motive was not necessary for a finding of professional misconduct.
An intervention of some significance occurred during the course of final submissions. Counsel for the Commission expressly retreated from the contention that, in conducting himself as he did, the respondent was motivated by personal sexual gratification. To be clear, after referring to the respondent's evidence in cross examination denying "sexual intent or sexual gratification", and evidence given by a psychiatrist on the respondent's behalf, and acknowledging that the Commission's case that the conduct was motivated by sexual gratification could only be proved by inference, counsel is recorded in the transcript as follows: "…so the [Commission] acknowledges that that finding would be open to the tribunal in relation to sexual intent, but doesn't press the tribunal to make that finding, so I just want to put that out at the outset. Anybody reading this transcript from August through to February, and through to yesterday, and looking at the evidence, might have that concern that it was for a sexual purpose, because frankly, elements of Dr Robinson's evidence, it's hard to understand that someone of his intelligence and his character could have made the mistakes that he did, without there being some ulterior purpose, but that's only an inferential case, and at the end of the day, in light of his rejection of that, and [the psychiatrist's] evidence, we don't press for that case to be made out, but we accept that it's available. We accept that it's available within the terms of the subparticular that refers to sexual in nature, that is, and I think I said this in my opening, that at one end of the spectrum, sexual in nature would involve or could involve intent, but we are focusing the matter on the more straightforward, if I can put it, aspect of this, there was no clinical indication, and therefore all of the physical examination was inappropriate, you might go further in respect of the breasts and say, well, we don't think that involved an error of judgment, we think it was improper because it involved the breasts, which are sexual in nature, and in whatever, however you see it, we will be pressing that it's serious and amounts to professional misconduct."
Earlier, counsel had said: "…if the physical examinations were inappropriate, then in the case of the breasts, then because of the fact that breasts are intrinsically sexual, we say that the conduct was sexual in nature, and that is a different question than in respect of whether Dr Robinson was sexually motivated, they are separate issues in my submission, and again I will return to the question of sexual motivation."
Later, in her submissions in reply to those made on behalf of the respondent, counsel reiterated, by reference to "Particular 4", that the respondent's conduct was "inappropriate" because there was no clinical reason to conduct a breast examination, a woman's breasts are inherently sexual, and therefore conducting a breast examination in the absence of a clinical reason to do so is "conduct that is sexual in nature" with or without a sexual motive. This was a theme repeated throughout the proceedings.
The Presiding Member's appreciation of the point made on behalf of the Commission, expressed at the opening of the inquiry, is not reflected in the Reasons. In each of the paragraphs of the Reasons extracted above, the Tribunal equated "inappropriate conduct of a sexual nature" with conduct that is sexually motivated. That is, perhaps, most clearly seen in [223], where the Tribunal stated its understanding of the Commission's case as being that touching of a woman's breasts by a medical practitioner without adequate clinical basis: "…must be seen as for an improper purpose … to satisfy the practitioner's sexual urge, or for him to obtain sexual gratification from same." This was the very proposition from which the Commission had been at pains to dissociate itself.
The same misunderstanding is evident in [222], where the Tribunal interpreted Particular 4 as: "…to cover the proposition … that [the respondent] conducted the examination to satisfy his own sexual need, that he conducted the examination to obtain gratuitous sexual satisfaction.", in [224], where the Tribunal was not satisfied that the respondent conducted the examination: "…either in part or in its entirety, for his own personal gratification." and in [227] where, notwithstanding the Commission's express distancing of itself from an allegation of sexual motivation, the Tribunal addressed the question of sexual motivation in terms that indicated that its inability to find such a motivation was dispositive of the Commission's argument.
These passages demonstrate clearly that the Tribunal failed to deal with a "substantial, clearly articulated argument" advanced by the Commission. Ground 1(a) succeeds.
It may be acknowledged that the proposition put by the Commission is not self-evidently correct. It is not entirely easy to conceive of "inappropriate conduct of a sexual nature" towards a nominated patient, constituted by an admittedly inappropriate breast examination with insufficient clinical indication, as other than sexually motivated. However, it was an argument clearly advanced to the Tribunal, constituted as prescribed by s 165B(2) of the National Law, and one that the Commission was entitled to have addressed by the Tribunal as constituted.
Some argument in this Court was directed to authorities said to support the proposition, for example, Health Care Complaints Commission v Sultan [2018] NSWCA 303 at [99], [101]-[102], [161]; Health Care Complaints Commission v Priyamanna [2015] NSWCATOD 138 at [174]-[185] and Ford v Inghams Enterprises Pty Ltd (No 3) [2020] FCA 1784.
Those authorities are of minimal, if any, relevance. The ground of appeal is not that the Tribunal wrongly decided the question. It is that the Tribunal failed to decide the question. As was acknowledged, the consequence of that ground, if upheld, is (no matter how unattractive) that the matter be remitted to the Tribunal for proper determination. The Commission has not sought to invoke the powers given to this Court by cl 29(7) of Schedule 5 of the CAT Act and conduct the appeal by way of a new hearing. Nor has any argument been advanced on behalf of the respondent that the argument advanced by the Commission is doomed to fail. That the question raised by the Commission's argument should be decided by the Tribunal, at least in the first instance, is consistent with the requirement of s 165B(2) that the Tribunal be constituted to include two medical practitioners and a lay member. The obvious purpose of these requirements is for the Tribunal to have the benefit of the special expertise and insights of members of the medical profession in the determination of issues arising out of the practice of medicine, as well as the insights of a lay member. The conclusion I have reached in relation to ground 1(a) makes it strictly unnecessary to determine ground 1(b) which, in any event, was ultimately pressed as an aspect of ground 1(a). It is unnecessary to say any more about it.

[7]

Grounds 2 and 3

By grounds 2 and 3 of the appeal the Commission complains that, in its consideration of whether the respondent's conduct amounted to professional misconduct, the Tribunal deferred to Stage 2 of the inquiry any impact the respondent's conduct may have had on public confidence in the medical profession and accordingly failed to take into account a (mandatory) relevant consideration. The complaint arises out of sub para (4) of [262] of the Reasons, in which the Tribunal said that both the question of the impact on Patient A and the potential impact of the respondent's conduct on public confidence in the medical profession should be deferred to Stage 2 of the inquiry. In support of the latter proposition the Commission relied on a passage from the judgment of Meagher JA (with whom Basten and Emmett JJA agreed), in Health Care Complaints Commission v Do [2014] NSWCA 307 in which his Honour said: "35 The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise."
Two short responses dispose of the submission. First, the remarks in Do on which the Commission placed reliance were made in the context of an appeal against protective orders made following Stage 2 of an inquiry. They were not directed to whether the impact of the conduct of the practitioner on public confidence in the medical profession is a mandatory consideration of, or even relevant to, the s 139E determination.
Second, this Court was not directed to any submission made to the Tribunal to the effect that the impact of the conduct in question on public confidence in the medical profession was a relevant, let alone a mandatory, consideration. I have made my own examination of both the written and oral submissions made to the Tribunal. No such submission has emerged. I have found no mention of the impact of practitioner conduct on public confidence in the medical profession. I find it difficult to conclude that the Tribunal erred in failing to address, or in deferring to Stage 2 of the inquiry, a proposition or argument that was never put to it. To suggest that the Tribunal erred by failing to address an argument that was not put to it borders on the impertinent: See Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [208] HCA 42 at [120]-[121]; Elzahed v State of New South Wales (2018) 97 NSWLR 898; NSWCA 103 at [2]. Grounds 2 and 3 should be rejected.
Ground 2, however, potentially raises a question about the two stage procedure commonly adopted in disciplinary proceedings in the Tribunal. In EFA, at [171]-[172] this Court commented on the anomaly (in the context of LPUL proceedings) of determining the professional misconduct question prior to the issues that will be illuminated in Stage 2 of an inquiry. While those observations were made in the particular context of findings of unfitness to be a member of the legal profession, some of the same issues arise in the determination of whether conduct comes within s 139E of the National Law so as to result in a finding of professional misconduct. By s 38 of the CAT Act, subject to any legislative prescription, the Tribunal may determine its own procedure. It may, as in this case, do so by deciding to adopt a two stage procedure. That does not necessarily entail a rigid division of the issues into (i) whether unsatisfactory professional conduct or professional misconduct is established (as Stage 1) followed by (ii) an inquiry into what consequential orders ought to be made (as Stage 2). There may be occasions where a more satisfactory course would be to decide any disputed factual issues at Stage 1, and defer the characterisation of the conduct so found to Stage 2. That is a matter for the Tribunal's own determination in the particular circumstances of any particular case.

[8]

Ground 4

By ground 4 the Commission's complaint, again, is that the Tribunal failed to take into account a "relevant consideration", the "relevant consideration" on this ground being the reasonableness of the view held by the respondent that the breast and abdomen examinations were clinically indicated.
Counsel for the Commission did, in the Tribunal, address, at some length, the issue of whether there was any clinical indication for the breast and/or abdomen examinations. The respondent maintained that there was a clinical reason for the examinations, although, by the conclusion of the proceedings, he accepted (as did the Tribunal) that such medical indication as there was was inadequate to justify the examination. The Tribunal expressly accepted that, at the time of the examinations, the respondent believed that they were clinically indicated. It did not examine the reasonableness of that belief. Nor was it asked to do so. At no point in the written submissions made to the Tribunal was any question of the reasonableness of the respondent's belief raised.
It may be that some reference to the reasonableness of the respondent's belief can be read into the oral submissions. Counsel is recorded in the transcript as saying: "We're saying if it's not clinical [sic] indicated, then he should not have done it, and if his belief, if it wasn't clinically indicated, then that in itself is inappropriate. You then have to look at how serious was it. As I see it, his case is, well, I reasonably believed it was clinically indicated, so it's not as serious as you would otherwise see it. We say, no, that belief was not reasonable, and therefore it is serious. So it's on the question of the seriousness, which goes to the question of professional misconduct, rather than [unsatisfactory professional conduct], that the reasonableness issue arises, and many of the matters that we rely on the [sic] say that it wasn't clinically indicated at all are also relevant to the assessment of the reasonableness of his belief."
I would accept that the reasonableness of a medical practitioner's erroneous belief that a medical justification exists for a procedure may be directly relevant to "the knowledge, skill or judgment possessed" by the practitioner, all of which are factors in s 139B(1)(a) (the definition of unsatisfactory professional conduct), and therefore, by extension, whether the unsatisfactory professional conduct in terms of s 139B(1)(a) is sufficiently serious to justify suspension or cancellation of the practitioner's registration. It would take a generous approach to the submissions extracted above to interpret them as raising questions of "knowledge, skill or judgment possessed" by the respondent and it is not, therefore, surprising that the Tribunal did not address the submissions in those terms. This ground should not be upheld. That does not mean that the issue is not one that could, and should, be addressed in the new inquiry that must take place.
Subclause (8) of cl 29 of Sch 5 of the CAT Act identifies (not exhaustively) orders that may be made by this Court in a "non lawyer appeal". Relevantly, those orders include: "(d) the whole or any part of the case to be reconsidered by the Tribunal at first instance, either with or without further evidence, in accordance with the directions of the court."
The orders I propose are:
Appeal allowed.
The whole of the Application for Disciplinary Findings and Orders filed by the Health Care Complaints Commission on 9 April 2020 be reconsidered by the Tribunal in accordance with these reasons.
The respondent is to pay the appellant's costs of the appeal.
The process by which the Tribunal reconsiders its decision (on the existing material, or otherwise) is a matter for the Tribunal.

Parties

Applicant/Plaintiff:

Health Care Complaints Commission

Respondent/Defendant:

Robinson

Legislation Cited (4)

Civil and Administrative Tribunal Act 2013(NSW)

District Court Act 1973(NSW)

Evidence Act 1995(NSW)

Supreme Court Act 1970(NSW)

Cases Cited (46)

cul v Corney (1976) 180 CLR 213; [1976] HCA 6 Livers v Legal Services Commissioner (2020) 103 NSWLR 738; [2020] NSWCA 317 Lucire v Health Care Complaints Commission [2011] NSWCA 99 Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Petch v Director of Public Prosecutions (NSW) [2022] NSWCA 33 Tangsilsat v Council of the Law Society of New South Wales [2019] NSWCA 144 Triden Properties Ltd v Capita Financial Group Ltd [1993] NSWCA 272 Category: Principal judgment Parties: Health Care Complaints Commission (Appellant) David Isaac Matzner Robinson (Respondent) Representation: Counsel: J S Emmett SC/R McEwen (Appellant) A Francis/Z Alderton (Respondent)

Solicitors: Health Care Complaints Commission (Appellant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2021/288657 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Occupational Division Citation: Health Care Complaints Commission v Robinson [2021] NSWCATOD 142 Date of Decision: 14 September 2021 Before: Le Poer Trench ADCJ, Principal Member Prof I Rewell, Senior Member Dr G Thomson, Senior Member J Houen, General Member File Number(s): 2020/112474

HEADNOTE [This headnote is not to be read as part of the judgment] The respondent, an ophthalmologist, was consulted by a young woman complaining of eye pressure. During the consultation, the respondent asked the patient to remove her singlet top, and conducted breast and abdominal examinations. He also asked whether the patient was "on her period", whether her breasts became tender, and whether she had previously had a Pap smear. After the patient complained, the Health Care Complaints Commission applied to the NSW Civil and Administrative Tribunal seeking findings that the respondent was guilty of unsatisfactory professional conduct and professional misconduct. The Tribunal found the respondent guilty of the former but not the latter, having deferred for further consideration what orders should be made consequent upon those conclusions. It did so according to the common practice in the Tribunal of dividing hearings into two stages. The Commission appealed against the Tribunal's decision not to find the respondent guilty of professional misconduct. There were three main issues. The first was whether there lay an appeal as of right from a decision of the Tribunal made after only the first of its two stages of hearings. The second was whether the Tribunal failed to exercise its jurisdiction by limiting its consideration of whether the breast examination was sexual in nature to whether the examination was undertaken for a sexual purpose (ground 1 of the appeal). The third concerned more broadly the Tribunal's practice of conducting its hearings in two stages. The Court upheld the appeal:

On the question whether there lay an appeal as of right: Per Simpson AJA, Leeming JA and Kirk JA agreeing: A decision made at "Stage 1" of an inquiry that a health practitioner is guilty or not guilty of unsatisfactory professional conduct or professional misconduct pursuant to the Health Practitioner Regulation National Law (NSW) ("National Law"), is not an "ancillary" or "interlocutory" decision for the purposes of cl 29 of Sch 5 of the Civil and Administrative Tribunal Act 2013 (NSW) ("CAT Act"). An appeal from such a decision lies as of right so far as the appeal raises a question of law, but requires leave for any other ground: at [83]-[86]. Further, per Leeming JA, Kirk JA agreeing: the decision of the Tribunal was a "profession decision" for the purposes of cl 29 of Sch 5 of the CAT Act. Being a "non-lawyer" appeal, the present appeal lies as of right if on a question of law: cl 29(4). The key question is whether cl 29(6), which qualifies that right of appeal, is engaged. That depends on whether the decision in question was an "interlocutory decision", which is defined under s 4 of the Act. The decision was not one of the specific types of "interlocutory decision" listed under the definition, nor did the decision concern "any other interlocutory issue". The phrase "interlocutory issue" is to be understood in the statutory context at issue as confined to procedural or evidentiary issues which do not determine on a final basis any aspect of the dispute between the parties: at [18].

Judgment

LEEMING JA: I agree with Simpson AJA. I write by way of elaboration of her Honour's conclusion that the HCCC enjoyed an appeal as of right to this Court on a question of law from a "Stage 1" decision in a "non-lawyer appeal". That result accords with what has been held, albeit apparently without argument, in Tangsilsat v Council of the Law Society of New South Wales [2019] NSWCA 144 at [13] and applied in Livers v Legal Services Commissioner (2020) 103 NSWLR 738; [2020] NSWCA 317 at [5], although neither was a decision for the purposes of the Health Practitioner Regulation National Law (NSW) ("National Law") which contains a slightly different regime. The issue arose during the hearing of the appeal, leading to the parties supplying submissions after judgment was reserved (on 10, 19 and 24 May 2022), and with the Commission supplying a draft application for leave to appeal if contrary to its submission leave be required. It is tolerably clear that the question is complicated, and for that reason it may be desirable to explain why I have reached the conclusion that this appeal lies as of right.
"Profession decisions" are defined in cl 29(1) of Schedule 5 of the Civil and Administrative Tribunal Act 2013 (NSW) ("CAT Act") and extend, relevantly, to most decisions for the purposes of the National Law and all decisions for the purposes of the Legal Profession Uniform Law (NSW) ("LPUL"). The latter are regulated by Division 4 of Schedule 5 of the CAT Act, which contains important departures from the other proceedings in the Occupational Division, including as to the constitution of the Tribunal (cl 18(1)), the applicability of the rules of evidence despite s 38 of the Act (cl 20), the prima facie position that proceedings be conducted in public (cl 22) and costs (cl 23). The former are regulated in part by Division 3, but in large measure the position is determined by the National Law. That is because s 165A of the National Law provides that Division 10 applies "despite anything to the contrary in the Civil and Administrative Tribunal Act 2013". Under Division 10, provision is made for the constitution of the Tribunal (s 165B), whether the proceedings are closed to the public (s 165K), and the content and publication of decisions (s 165M). Nothing displaces the operation of s 38 of the CAT Act that the rules of evidence do not apply. Thus profession decisions for the purposes of the LPUL are quite different from profession decisions for the purposes of the National Law.
Profession decisions (which will generally have been determined by a multi-member Panel) are not "internally appealable decisions" from which an appeal lies to the Appeal Panel of the Tribunal, with a further appeal on a question of law to the Supreme Court under s 83 of the CAT Act. Instead, an appeal lies directly to the Supreme Court: cl 29(2). Where as is common the tribunal is constituted so as to include a judicial member, that appeal will be allocated to the Court of Appeal: Supreme Court Act 1970 (NSW), s 48(2)(f) read with the definition of "specified tribunal" in s 48(1)(a)(vii).