Health Care Complaints Commission v Sarfraz

Background

1. The evidence before the Tribunal on this application was regrettably scant. No details of the practitioner's asserted impairment, or medical evidence relied on to support that assertion was before the Tribunal save and except the particulars in the complaint which assert: 1. significant impairment in intellectual and memory capacity 2. severe impairments in executive functions
2. However, in fairness to Ms R. M Lewis (Ms Lewis) the legal officer who appeared before the Tribunal, I note that in her letter dated 30 April 2015 she indicated "the Commission is willing to appear before NCAT for any further proceedings in relation to this matter".
3. The practitioner's request to the Australian Health Practitioner Regulation Agency (AHPRA) to remove his details from the public register reveals that he was born in 1940. He is accordingly aged 75 years. The complaint reveals that the practitioner was first registered to practise in Australia in 1971.
4. The practitioner's registration was suspended on 19 December 2013 under s 41P and s 150 of the National Law. The suspension was continued on 23 December 2013 with the consent of the practitioner.
5. The practitioner's solicitor asserts that on 17 December 2012 the practitioner travelled overseas, and the complaint was not received by him prior to leaving Australia. The practitioner is asserted to have returned to Australia in or around March 2015.
6. On 1 April 2015, the Director of Proceedings, Ms K Mobbs, consulted with the Medical Council of NSW about whether or not the complaint should be withdrawn in circumstances where it was proposed that the practitioner would surrender his registration. She noted in her letter the practitioner's age and that he suffered from an impairment. She also explained: While there is sufficient evidence to prove a complaint and justify prosecution before NCAT, I am of the view that prosecution is not warranted if Dr Sarfraz has his name removed from the Register and undertakes not to re-register in the future. In the event that Dr Sarfraz does apply for re-registration, consideration may be given to prosecuting a complaint at that time and Dr Sarfraz and AHPRA can be advised of this in writing.
7. By letter dated 9 April 2015 the practitioner's solicitors wrote to the Tribunal and enclosed an application to AHPRA to exclude information from the public register. This document refers to the practitioner as a "retired general practitioner". Also annexed to the solicitor's letter is a statutory declaration which it is asserted was provided to AHPRA made by the practitioner in which he states: 1. I wish to surrender my registration as a General Practitioner. 2. I no longer wish to practice medicine and will not be seeking to renew or reapply for, registration and/or practising certificate. 3. I request that all details pertaining to me and my practice at either [practice address] or [another address] be removed from the public register.
8. On 30 April 2015 Ms Lewis, on behalf of the HCCC wrote to the Registrar, Occupational Division of the Tribunal noting that, after careful consideration of the evidence, the HCCC sought to withdraw the complaint and requested that no inquiry be held.

The relevant law and principles to be applied in this application

1. The application is made under Sch 5D of cl 12 of the National Law. That clause relevantly provides: (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.
2. In the decision of Health Care Complaints Commission v Khan [2014] NSWCATOD 79, I considered whether or not an application, such as the present one, could be determined by a single member prior to the hearing of the proceedings, or whether such an application must first be referred to a Tribunal constituted as prescribed in s165B (2) of the National Law. I determined that it was possible, but not without doubt, for such applications to be brought before a single member allocated to preside at the hearing of the matter prior to the commencement of the actual hearing. In a complaint involving a medical practitioner the relevant member presiding is a senior judicial officer (see s165B(2) (a)).
3. Since that decision, the Court of Appeal has handed down its decision in Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63. In that case a fully constituted Tribunal, after a defended hearing, gave oral (ex-tempore) reasons for decision and made interlocutory orders imposing conditions on a medical practitioner's registration on 19 December 2014. However, on 9 January 2015, the senior judicial officer sitting alone, and without reconstituting the Tribunal, but with the consent of the parties, amended or modified the interlocutory orders made on 19 December 2014. The Court of Appeal noted that the HCCC's solicitor readily conceded the parties' consent could not overcome a lack of power (for a presiding member alone to make orders) in the absence of an express statutory provision.
4. The drafting of cl 12 (3) leaves some doubt as to whether it is necessary to constitute a Tribunal as a prior requisite to the presiding member alone being empowered to deal with application for withdrawal of a complaint. The words "the member of the Tribunal presiding" in sub-clause (3) of cl 12 may be interpreted as: 1. a general description of a person authorised under the clause to determine the application without constituting a full tribunal consistent with the definition of "presiding member" in s 165B (2) (a), that is 1 Division member who is an Australian lawyer of at least 7 years' standing or, in the case of a medical practitioner, 1 Division member who is a senior judicial officer" OR 2. require a Tribunal as constituted by 165B (2) for the conduct of an inquiry or hearing an appeal, to be appointed and thereafter the power of that Tribunal be exercised by the presiding member.
5. As the National Law is currently subject of review, clarification of the ambit of the power exercised under cl 12 would be practical. There is no doubt that, unlike the majority of applications filed in the Tribunal, the provisions of the National Law, override s 55 of the Civil and Administrative Act 2013 (NSW) which permits the withdrawal of applications by consent of the parties. It is, however, noteworthy that the application filed in the Tribunal is an application for disciplinary orders and findings (which annexes the complaint) and the initiating process is not, as occurred in the former health profession tribunals including the Medical Tribunal of NSW, the complaint itself. For administrative case management purposes it is, in my view, prudent to make an order under s 55 dismissing an application if it is deemed appropriate for the complaint to be withdrawn.
6. Clause 12, on its face, has no application to the withdrawal of an appeal under the National Law unless the appeal has commenced. Thus s 55 of the Civil and Administrative Tribunal Act is utilised as a cost effective means of disposing of an appeal, prior to hearing, if the appellant notifies the Tribunal he or she wishes to discontinue the appeal. But an inquiry into a complaint, whether or not a hearing has commenced raises different issues affecting the public. Thus, s 3A of the National Law is paramount in determining any application. That section provides: In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
7. There are a number of practical reasons why these applications should be heard by a senior judicial officer or a lawyer qualified under s165B (2) (a) without the necessity to constitute a full Tribunal if an application is brought prior to the commencement of a hearing. The timeliness of a hearing, generally "on the papers" and cost benefit of dealing with applications in this manner is readily apparent. Further, emotional stress to a practitioner or former practitioner who, as in this case, suffers an impairment, can be minimised. Additionally, by publication of its reasons the Tribunal's decision provides transparency and upholds the high standards of the profession. In some circumstances the reasons explaining why the practitioner's resignation was appropriate will act as a deterrent to like conduct by other practitioners. Most importantly, however, the presiding member must, on the evidence before him or her, be satisfied it is not in the public interest for the inquiry to be heard. That discretion must be exercised judicially guided by s 3A.
8. The power to hear applications under cl 12 may be a matter to be considered in the proposed discussion paper on review of the National Law by NSW Health.
9. For abundant caution, and as presently advised, I requested the Registrar to ask the Medical Council to nominate occasional members under s 165B (2) (b) and those persons nominated were appointed by the President as occasional members. Thus, I am the member presiding for the purposes of this application of the Tribunal so appointed.

Discussion and conclusions

1. While there was no evidence before me that AHPRA had cancelled the practitioner's registration, the practitioner's statutory declaration makes it plain he does not propose to seek registration when his registration falls due and does not propose to practise again.
2. The practitioner has at all times been legally represented in these proceedings. The practitioner's solicitors have not disputed the impairment or lack of fitness to practise particulars. The inference may be drawn in these circumstances that those particulars are not disputed.
3. My task in this matter would have been assisted by some medical evidence relied on by the HCCC about impairment, or minimally, a copy of the orders and/or reasons from the s 150 proceedings. I note the offer of the HCCC to appear before the Tribunal if appropriate. However, in respect of the lack of medical evidence, I find the practitioner's solicitors did not dispute that the practitioner had been suspended since 2013. This is a paramount consideration because it means the practitioner does not present a risk to the public as he is not able to carry on his former practice as a general practitioner. In these circumstances I determined not to re-list the matter and seek further evidence.
4. I have also placed significant weight on the determination of the Director of Prosecutions that this matter should not be prosecuted, and the fact that the Medical Council of NSW agree with that decision.
5. My overall conclusion is that pursuing this complaint to a final hearing is not in the interests of the public. Public funds would be expended in the litigation, and the outcome, assuming the particulars in the complaint are established, (cancellation of registration) in practical terms, so far as public safety is concerned, is identical to the practitioner surrendering his registration.

Costs

1. Neither party sought orders for costs in this matter. I note that fact and have made orders accordingly.

ORDERS 1. Leave is granted to the Health Care Complaints Commission to make an oral application to withdraw the application for disciplinary orders (with complaint annexed) filed 7 January 2015 ("the application") against Dr Ali Sarfraz. 2. The Tribunal consents to the complaint being withdrawn under cl 12 of Sch 5D of the Health Practitioner Regulation National Law. 3. The application for disciplinary finding and orders is dismissed under s 55 of the Civil and Administrative Tribunal Act 2013 (NSW) 4. No order as to costs I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 July 2015