Health Care Complaints Commission v Thornton [2025] NSWCATOD 61

(1) A Committee or the Tribunal may decide not to conduct an inquiry, or at any time to terminate an inquiry or appeal, if -

(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(iii) the complaint before the Committee or the Tribunal is withdrawn; and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.

1. In relation to cl 12(1)(a)(ii), Dr Thornton is not currently a registered health practitioner.
2. In relation to cl 12(1)(a)(iii), the HCCC has withdrawn the complaint.
3. I am satisfied that the provision is engaged, and that the issue between the parties is whether it is in the public interest for the substantive proceedings to continue: cl 12(1)(b).
4. The onus is on the HCCC to show that it is not in the public interest for the Inquiry to continue.
5. The term "public interest" is not defined in the National Law. Clause 7 of Sch 7 of the National Law provides:

(1) In the interpretation of a provision of this Law, the interpretation that will best achieve the purpose or object of this Law is to be preferred to any other interpretation.

(2) Subclause (1) applies whether or not the purpose is expressly stated in this Law.

1. The relevant objectives of the National Law are set out in s 3:

(1) The object of this Law is to establish a national registration and accreditation scheme for -

(a) the regulation of health practitioners;

...

(ii) clinical training in a health profession.

(2) The objectives of the national registration and accreditation scheme are -

(a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; ...

...

1. The guiding principles of the National Law are set out in s 3A:

(1) The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration.

In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.

1. The definition of "public interest" has been considered by the Courts and Tribunals on many occasions.
2. In determining whether to grant the relief sought by the HCCC, I take the following principles into account:
3. In Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91] Basten JA held:

"The purpose of any order made upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so."

1. In Pharmacy Council of NSW v Ibrahim [2020] NSWSC 708 at [35], the Court held:

"... the plain language of the statute ... clearly differentiates in its two limbs between the protection of the health and safety of the public, and the public interest. The public interest is a broader concept, encompassing wider community interests such as the standards to which human conduct is to be held."

1. The purpose of an Inquiry into complaints against a health practitioner was explained by Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 at [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."

1. In NSW Bar Association v Meakes [2006] NSWCA 340, the Court of Appeal considered a protective order imposed on a legal practitioner. Basten JA held at [113]:

"The point sought to be made in the authorities is, no doubt, that the Court or Tribunal making an order in disciplinary proceedings must have squarely in mind the protective purpose of the order, in the public interest. That is not to say that the adverse (punitive) effect on the practitioner should be ignored; clearly no order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose."

1. As the Tribunal observed in Health Care Complaints Commission v Mercurio [2017] NSWCATOD 136 at [15]:

"There are a number of decisions of members of this Tribunal dealing with applications made under clause 12 of Schedule 5D of the Act. The effect of some of these decisions has been to not conduct or terminate an enquiry, and others have been to contrary effect. In some cases, the health practitioner has conceded misconduct, and in others has denied such conduct. In some cases, the allegations against the practitioner have been of a most serious kind, and others of lesser significance. In some cases, the practitioner has been found to be suffering from an underlying condition which would preclude him or her from ever practising medicine again, and the physical or mental condition of others has been affected by age. Each case must be considered having regard to its own facts, and this may account for the diversity of results..."

Change in circumstances since the Application was filed

1. The Health Care Complaints Commission was created by the Health Care Complaints Act 1993 (NSW) (the HCC Act): s 75.
2. Decisions to prosecute or withdraw complaints are made by the Director of Proceedings, who is a member of staff of the HCCC: ss 90A and 90B of the HCC Act.
3. In making that decision, the Director of Proceedings is to take into account the protection of the health and safety of the public, the seriousness of the alleged conduct and the likelihood of proving the alleged conduct: s 90C of the HCC Act.
4. I was informed that, at the time the substantive proceedings were commenced, the Director of Proceedings had formed the view that the complaints should be prosecuted. The HCCC has a duty to refer a complaint to the Tribunal if it forms the view that the complaint may, if substantiated, provide grounds for suspension or cancellation: s 145D of the National Law.
5. However, since then, the Director of Proceedings has received new information and decided to withdraw the complaints.
6. In the substantive proceedings the HCCC makes the following complaints about the conduct of Dr Thornton.

1. Complaint One asserts that Dr Thornton breached conditions on his registration requiring him to inform the Chinese Medical Council if he treated a female patient.
2. Complaint One has 12 Particulars. They assert different breaches of the conditions - in some cases the information was provided late or not at all and in others he failed to include all of the required details in the information he provided.
3. The Director of Proceedings has re-examined the asserted failures. In respect of some of the Particulars, Dr Thornton had in fact complied with the conditions; in respect of another Particular the breach asserted was that Dr Thornton's location had been omitted from the forms but his place of practice was known; in respect of another Particular the breach asserted was that the information had been provided one day late; in respect of another Particular the breach asserted was that the information had been provided seven days late, however Dr Thornton had explained how he had misunderstood that aspect of the condition; and in relation to some of other Particulars the correct information could be ascertained from the totality of the documents Dr Thornton had provided or he had not seen any female patients during the relevant period.
4. For these reasons the Director of Proceedings has decided to withdraw Complaint One.

1. Complaint Two asserts that Dr Thornton did not notify the National Board within seven days of becoming aware that he had been charged with two offences - assault occasioning actual bodily harm and contravening an apprehended domestic violence order
2. Dr Thornton was required to inform the National Board, within seven days after becoming aware that he had been charged with those offences: s 130 of the National Law.
3. Dr Thornton did not inform the National Board. He told a s 150 hearing that he did not know he was required to disclose that information.
4. The Director of Proceedings' decision was based on a criminal history check conducted on 27 October 2021. An updated check performed on 28 April 2025 showed that the two charges were withdrawn on 23 February 2022.
5. The Director of Proceedings considers that the breach of s 130 of the National Law can be proven, but they will be unable to show that there was any risk to the health and safety of the public between the date Dr Thornton was charged and the date on which the charges were withdrawn as a consequence of Dr Thornton's failure to inform the National Board.
6. For these reasons the Director of Proceedings has decided to withdraw Complaint Two.

1. Complaint Three asserts that Dr Thornton submitted an online renewal application in which he provided information which he knew or ought to have known was false. In that application he did not disclose two complaints that had been made against him.
2. The HCCC concedes it does not have evidence to establish the complaint.
3. In addition, the information had been provided by the HCCC to AHPRA before Dr Thornton completed the online form.
4. The Director of Proceedings considers that, even if the complaint can be substantiated, they will be unable to show that there was any risk to the health and safety of the public as a result of the breach.
5. As a model litigator, the HCCC:

(1) is no longer of the view that there is sufficient evidence to establish Complaints One or Three.

(2) is no longer of the view that the conduct alleged in Complaint Two is sufficiently serious alone to establish professional misconduct as alleged in Complaint Four.

1. I accept the submission that, as Dr Thornton is not registered, the HCCC cannot seek an order cancelling his registration.
2. I also accept the submission that the Tribunal can only make an Order to the effect that, if Dr Thornton were still registered, his registration would have been cancelled, if there has been a finding of professional misconduct: s 149C(4)(a) of the National Law.
3. I accept the submission that the Tribunal cannot impose a reprimand on a practitioner who is no longer registered. In Health Care Complaints Commission v Ruming [2024] NSWCATOD 77 at [107], the Tribunal held:

"Reviewing the Tribunal's decisions, we accept the Commission's submission that the better view is that the Tribunal cannot issue a reprimand to an unregistered practitioner."

1. Accordingly, the HCCC submits, it is not in the public interest for the Inquiry to continue because there is insufficient evidence for the Tribunal to find the alleged conduct proven and make the proposed protective orders.

1. I now turn to consider whether the HCCC has shown that it is not in the public interest for the Inquiry to continue.
2. A relevant issue will be the likely strength of the HCCC's case. In Health Care Complaints Commission v Torrinello [2015] NSWCATOD 90 at [30], the Tribunal held that the likelihood of whether the HCCC could prove all of the particulars of the complaint must be taken into account and weighed in the balance. As set out above, the HCCC concedes that the Particulars of the three complaints either cannot be proved or do not raise serious issues requiring determination.
3. Protection of the health and safety of the public includes protecting the public from similar misconduct or incompetence of other practitioners. In the circumstances of this case, where there are now no serious issues to be resolved, there can be no deterrent effect if the Tribunal continues with the Inquiry.
4. Dr Thornton is not registered to practise. However he did not volunteer to cancel his registration, nor has he indicated that he does not intend to apply for registration in the future.
5. The HCCC does not intend to proceed with the Application.
6. Proceeding with the Inquiry would involve unnecessary time, costs and expend limited Tribunal resources.
7. Weighing each of the matters I have identified I am satisfied, on balance, that it is not in the public interest for the Inquiry to continue and the Order sought by the HCCC should be made.

1. The Tribunal's power to award costs is conferred by cl 13 of Sch 5D of the National Law. The power is broadly expressed, and, as relevant to this application, states:

(1) The Tribunal may order the complainant, if any, the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal.

1. The general rule is that costs follow the event but the question of costs is discretionary. 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: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]- [43].
2. The HCCC asked for there to be no order as to costs because Dr Thornton is not legally represented, did not attend the directions hearings, has not filed any Reply or material and so has not incurred any legal costs.
3. However the documents in evidence do show that Dr Thornton has consulted solicitors from time to time so it is possible that Dr Thornton has incurred recoverable legal costs.
4. Much of the information which has now caused the Director of Proceedings to seek to terminate the proceedings was ascertainable before the substantive proceedings were commenced. Accordingly, I consider that the appropriate order is for the HCCC to pay the costs of Dr Thornton, leaving it to Dr Thornton to establish whether there are in fact any costs he is entitled to recover.

1. The Tribunal is generally required to publish written reasons of decisions on an Inquiry: s 165M(1) National Law. That section provides.

(1) As soon as practicable after making a decision on an inquiry or an appeal under this Law (bearing in mind the public welfare and seriousness of the matter), the Tribunal must give a written statement of the decision to -

(a) the parties; and

(b) the Council for the health profession in which the practitioner or student is registered (regardless of whether it is a party).

(a) set out any findings on material questions of fact; and

(b) refer to any evidence or other material on which the findings were based; and

(c) give the reasons for the decision.

(3) The Tribunal may also provide the statement of a decision to the persons the Tribunal thinks fit.

(4) Unless the Tribunal has ordered otherwise, the Tribunal is to make publicly available a statement of a decision given by it under this section if the decision is in respect of a complaint that has been proved or admitted in whole or in part.

(5) This section applies to a decision on an inquiry that is conducted into a complaint referred to the Tribunal under this Law where the subject-matter of the complaint is admitted in writing to the Tribunal.

1. Section 62 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) provides:

62 Tribunal to give notice of decision and provide written reasons on request

(1) The Tribunal (including when constituted as an Appeal Panel) is to ensure that each party to proceedings is given notice of any decision that it makes in the proceedings.

(2) Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made.

...

(4) Nothing in this section prevents the Tribunal from giving oral reasons or a written statement of reasons for a decision it makes even if it has not been requested to do so by a party.

1. The HCCC does not request the Tribunal to publish its reasons on this Application, pursuant to s 62 of the NCAT Act, as it no longer seeks any findings or protective orders against Dr Thornton.
2. The Tribunal is generally required to publish written reasons for a decision to terminate an Inquiry as set out in s 165M(4) of the National Law. I do not consider that there is any reason to depart from that practice. I decline to make that Order.

(1) The application under clause 12 of Schedule 5D to the Health Practitioner Regulation National Law (NSW) to terminate the Inquiry is granted.

(2) The Health Care Complaints Commission is to pay the costs of Dr Thornton.

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.

02 June 2025 - Corrections to paragraphs [1] and [2] made pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 (NSW).