Health Care Complaints Commission v Taylor

NCAT Occupational|2022-04-29|Before: Jennifer Boland AM

Introduction

These reasons are in respect of an application by the Health Care Complaints Commission to vacate the hearing of disciplinary proceedings which are fixed for hearing for three days commencing on 9 May 2022.
The disciplinary proceedings were originally fixed for hearing for four days commencing on 21 February 2022 but those dates were vacated by consent. After directions being varied on two occasions, on 18 February 2022 hearing dates were fixed for three days commencing on 9 May 2022.
On 28 April 2022 the solicitor with the conduct of the matter for the Health Care Complaints Commission (the HCCC) forwarded an email to the Registrar noting: There has been a recent development in the matter which has potential to have bearing on the Hearing date of 9 May 2022. Notwithstanding every effort by the Commission, Dr Taylor has failed to attend upon Psychiatrist Dr Keller for the purpose of the preparation of an independent Report which is of relevance to the issues to be determined by the Tribunal at Hearing.
The email, which was copied to Ms Angela Pale the solicitor having the carriage of the matter for Dr Taylor, requested an urgent listing.
The matter was listed before me on 29 April 2022 in accordance with the parties' request. At the directions hearing both parties sought that the hearing dates be vacated and made submissions in support of that oral application. However, neither party provided any evidence in support of the application. I made directions for the filing of evidence in support of the application. An affidavit by Ms Maria Wallis, the solicitor having the care and conduct of the matter from the HCCC, was received later on 29 April 2022. An affidavit from Ms Angela Pale, the solicitor for Dr Taylor sworn on 29 April 2022 was received on 2 May 2022.
In a Reply filed by Dr Taylor she admits particulars 1 and 2 of Complaint One agitated by the HCCC. She admits Complaint Two and admits she is impaired as set out in Complaint Three, but does not admit the nature of her impairment. She disputes she is not competent to practise as asserted in Complaint Four and that she is guilty of professional misconduct as alleged in Complaint Five. Thus, it is clear there are contested matters to be determined by the Tribunal.

The HCCC

Ms Wallis in her affidavit sworn on 29 May 2022 deposes that, on 10 March 2022, an appointment was scheduled for Dr Adrian Keller to conduct an independent assessment of Dr Taylor at his rooms at Kogarah.
Ms Wallis further deposes that she was advised by Dr Taylor's solicitors on 15 March 2022 that Dr Taylor would attend the appointment. However, at 11.56am on 27 April 2022 she received an email from Dr Keller advising that Dr Taylor failed to attend the appointment. An email from Dr Keller annexed to the affidavit records that when Dr Taylor failed to attend he telephoned her, that she stated she had a cold and was in no fit state to participate in an assessment even if by video (which was offered as an alternative). Dr Keller offered to proceed with the assessment at an alternative time.
At para 5 of her Affidavit Ms Wallis deposes to the Medical Council of New South Wales (the Council) referring a further complaint about Dr Taylor to the HCCC. She explains this further complaint led to urgent action by the Council and the subsequent suspension of Dr Taylor's registration. Ms Wallis deposes as follows: It is highly likely that the fresh complaint is serious enough to be relevant to facts in issue to be determined by the Tribunal at Hearing on 9 May 2022.

Dr Taylor's legal representative

Ms Angela Pale, solicitor of HWL Ebsworth; swore an affidavit on 29 April 2022.
Ms Pale confirms that Dr Taylor's registration was suspended following proceedings under s 150 of the National Law on 4 March 2022.
Ms Pale deposes to a conversation with Dr Taylor on 26 April 2022. Dr Taylor is reported to have told Ms Pale that she was to be evicted from her rental property that or the following day, and that subject to receiving assistance from Mission Australia; she would likely be made homeless.
At para 6 of her Affidavit Ms Pale explains that Dr Taylor informed her that she was physically unwell and in no state to participate in the health assessment scheduled for 27 April 2022. Ms Pale advised the HCCC on 26 April 2022 of her instructions from Dr Taylor.

Proposed grounds for the adjournment

I discern the grounds relied on to support the vacation of the hearing are as follows: 1. the question of the impairment cannot be properly determined without an up to date health assessment carried out by a psychiatrist; 2. that a further complaint may be lodged by the HCCC when its current investigation phase is determined. This complaint, if lodged, should be consolidated with and determined at the same time as the current complaint; 3. Dr Taylor's personal circumstances, namely, her loss of accommodation and present poor health; and 4. there is no risk to the health and safety of the public because Dr Taylor is suspended.

The Tribunal's guideline in respect of adjournments

The Tribunal has published a guideline to inform and guide parties seeking to adjourn proceedings. The guideline has application in the Administrative and Equal Opportunity Division and the Occupational Divisions of the Tribunal. The relevant principles for an adjournment are set out in the guideline that follows: "3. The overriding principle is that when a date and time has been set for a hearing it will go ahead on that date and at that time unless the Tribunal allows an adjournment. 4. In considering whether to allow an adjournment the Tribunal will (a) take into account the need to manage cases and hearings fairly and efficiently, this includes making sure cases are heard as soon as possible, and (b) allowing an adjournment only if the party requesting it has a good reason and it is fair in all the circumstances to adjourn".
These principles accord with common law principles dealing with late amendment and adjournments and I refer to the decision of the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27. They also reflect the objects of the Civil and Administrative Tribunal Act 2013 (NSW). The Health Practitioner Regulation National Law (the National Law) cl 11 of schedule 5D provides that it is the duty of the Tribunal to hear enquiries under this law and to determine those enquiries and appeals expeditiously. However, cl 11 (2) grants a discretion to the Tribunal to postpone or adjourn proceedings before it as it thinks fit.
I also note and take into consideration in this application s 3A of the National Law. The objective in that section is applicable in all applications under the National Law. It is a New South Wales provision and it provides that the health and safety of the public must be my paramount consideration.
Ultimately the determinative factor is where do the interests of justice lie?

The Health Care Complaints Commission submissions

Ms Wallis made submissions the factual basis for which were subsequently set out in her affidavit. In essence, she submitted that the Tribunal could not properly determined the impairment complaint and the "not competent to practise" allegations without the benefit of a health assessment. Further she submitted it would be practical, if the new complaint proceeds to the prosecution branch, for both complaints to be heard at the same time.

Submissions on behalf of Dr Taylor

Ms Pale did not dispute the submissions made on behalf of the HCCC. Further, she emphasised the potential unfairness to Dr Taylor if the matter proceeded without a health assessment and Dr Taylor's present difficult personal circumstances including potential homelessness.

Consideration

I was unable to deal with the application when listed because there was no application or any evidence to support an oral application to vacate the hearing dates.
I am grateful that both the solicitors promptly acceded the direction I made for filing affidavit evidence in support of the adjournment sought and express my thanks to them. While the Tribunal acts with as little formality as possible a hearing cannot be vacated without the necessary evidence to support such an order. I note that scarce resources of the Tribunal have been allocated to ensure this matter is ready for hearing, including the appointment of occasional members and the allocation of a hearing room. This means that a hearing was not available for other matters awaiting determination which could have been dealt with instead of these disciplinary proceedings. The presiding Judge and occasional members have set aside three days to be available for the hearing and will suffer inconvenience and disruption to their professional practices.
Notwithstanding these matters, as noted above the overriding consideration is "Where do the interests of justice lie". I am satisfied that the hearing should be vacated. Dr Taylor has health issues, is facing accommodation issues having recently been evicted from her rental property. She may be homeless if not assisted by Mission Australia or another NGO. If the matter proceeded in these circumstances there could well have been procedural unfairness to Dr Taylor. Further, the Tribunal will be assisted by an up to date health assessment to determine appropriate protective orders.
It is likely to be cost effective in the long run if a further complaint is pursued in the Tribunal for any new complaint to be consolidated with and heard at the same time as the existing complaint. Finally, and of some significance, a delay in the hearing will not be prejudicial to the health and safety of the public because the practitioner is suspended.
Balancing all relevant matters, I have determined that the hearing fixed for three days commencing on 9 May 2022 should be vacated.

ORDERS 1. The hearing listed to commence on 9 May 2022 is vacated. 2. The matter is listed for directions on 20 May 2022 at 11.30am.

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: 04 May 2022

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