Hyland v Medical Council of New South Wales

NCAT Occupational|2021-10-13

Overview

Mr Hyland is a final year medical student enrolled at the University of Newcastle. Following a hearing on 3 August 2021, the Medical Council of New South Wales (the Council) suspended his registration as a medical student. If his registration had not been suspended, it is likely that he would have completed his degree on 22 November 2021. Mr Hyland has appealed to the NSW Civil and Administrative Tribunal (the Tribunal) against the suspension decision. In the meantime, he has applied for a stay of the decision until the Tribunal determines the appeal.
Mr Hyland has appealed from the Medical Council's decision "with respect to a point of law". In those circumstances, the Tribunal may stay the Council's decision until the appeal has been disposed of. In exercising that discretion, the Tribunal is guided by considerations articulated by courts which are part of the general law. The Tribunal must assess the strength of the grounds of appeal and determine whether the appellant has an arguable case. A stay may be granted on terms that are fair to all parties. That involves weighing the effect on Mr Hyland of not granting a stay with any ways in which that effect can be ameliorated, such as by having an expedited hearing. The overriding question is what do the interests of justice require?
The stay application must be determined having regard to the objectives and guiding principles in the Health Practitioner Regulation National Law (NSW) (National Law). The protection of the health and safety of the public is the paramount consideration: National Law, s 3A.

The allegations

The trigger for the hearing was a notification by an acquaintance of Mr Hyland that he had been charged with multiple domestic violence and common assault offences. In their reasons for decision the Medical Council set out the background to this matter including the offences with which Mr Hyland had been charged and the fact that he had breached provisions about notifying the National Board of those charges. "1. On 8 March 2021 Mr Hyland was arrested and on 12 March 2021 he was charged (the 2021 criminal charges) with: i. Intentionally or recklessly destroy or damage property domestic violence related on 2 March 2021 under section 195(1)(a) of the Crimes Act 1900 (NSW) (liable to imprisonment for up to 5 years) ii. Common assault domestic violence related on 2 March 2021 under section 61 of the Crimes Act 1900 (NSW) (liable to imprisonment for up to 2 years) 2. Mr Hyland's failure to notify the National Board of the 2021 criminal charges within 7 days of being charged and not until the section 150 hearing in accordance with section 130 of the National Law. 3. On 12 May 2019, Mr Hyland was arrested and charged (the 2019 criminal charges) with: i. Intentionally choke etc person with reckless domestic violence on 10 May 2019 under section 37(1) of the Crimes Act 1900 (NSW) (liable to imprisonment for up to 10 years) ii. Intentionally choke etc person with reckless domestic violence on 10 May 2019 under section 37(1) of the Crimes Act 1900 (NSW) (liable to imprisonment for up to 10 years) iii. Assault occasioning actual bodily harm on 10 May 2019 under section 59(1) of the Crimes Act 1900 (NSW) (liable to imprisonment for up to 5 years) iv. Common assault on 10 May 2019 under section 61 of the Crimes Act 1900 (NSW) (liable to imprisonment for up to 2 years) Submissions on behalf of the Medical Council of NSW 4. Mr Hyland's failure to notify the National Board of the 2019 criminal charges within 7 days and at all in accordance with section 130 of the National Law."
The Medical Council explained that the 2021 and 2019 criminal charges relate to the same person, who I will call Person A. Mr Hyland was in an intimate relationship with Person A but they did not live together. An interim Apprehended Domestic Violence Order (ADVO) was taken out by NSW Police for the protection of Person A against Mr Hyland at the time of both the 2021 and 2019 criminal charges. The Medical Council went on to say that: "On 3 September 2019, the 2019 criminal charges were dismissed after a hearing before Magistrate Mijovich in the Local Court of NSW at Newcastle. The ADVO was also dismissed. Mr Hyland gave evidence. [Person A] did not attend court to give evidence at the hearing."
As well as Mr Hyland's answers to questions asked of him by the Medical Council's delegates, the Council had access to the Court Attendance Notices and the Fact Sheets for the 2019 and the 2021 charges. Mr Hyland also provided a letter from his general practitioner and statements from two friends.
The Council's role is not to decide whether the allegations are proven. Nevertheless, the reasons for decision refer in some detail to the allegations in the charges and to Mr Hyland's response to those allegations. Mr Hyland told the Medical Council delegates that he was the victim of domestic violence perpetrated by Person A and had sought medical advice and treatment for issues relating to her behaviour. The Council nevertheless expressed concern that certain matters to which Mr Hyland admitted "could be perceived as abusive, controlling and intimidating behaviour by Mr Hyland towards [Person A]". The Council also recorded Mr Hyland's reflections and his understanding of the public interest.
Under the heading 'Decision', The Council found that Mr Hyland faces the possibility of being convicted of the 2021 charges and that those charges relate to serious domestic violence allegations. In relation to the 2019 charges, the Council noted that Person A did not give evidence. That is correct, but I understand that the Local Court viewed the DVEC (Domestic Violence Evidence in Chief) video recording of Person A's version of events and that Mr Hyland was cross-examined on those allegations. The Council went on to find that the 2019 charges were serious and are similar to the 2021 charges.
In relation to the failure to notify the National Board of the 2019 charges and the failure to notify the National Board in a timely fashion of the 2021 charges, Mr Hyland said he was not aware of his responsibility to do so. Nevertheless he understood that ignorance is not an excuse.
The Council then summarised 13 considerations it had weighed up and taken into account in making its decision under section 150: "(i) The 2021 and 2019 criminal charges do not arise out of Mr Hyland's practice of medicine as a medical student. (ii) Any adverse outcome is likely to have an impact on Mr Hyland's medical studies and anticipated completion of his studies on 22 November 2021. (iii) The nature of the 2021 criminal charges are serious and carry the potential for a period of imprisonment. (iv) Both the 2021 and 2019 criminal charges relate to serious allegations of domestic violence perpetrated by Mr Hyland against [Person A]. (v) The 2019 criminal charges were dismissed after Mr Hyland gave evidence and [Person A] did not give evidence to protect Mr Hyland's future career in medicine. (vi) Mr Hyland's failure to comply with section 130 of the National Law and notify the National Board of the 2019 criminal charges. (vii) Mr Hyland's failure to comply with section 130 of the National Law until the section 150 hearing to notify the National Board of the 2021 criminal charges. (viii) The current interim ADVO provides protection for [Person A]. (ix) There is a presumption that Mr Hyland is innocent of the charges until the 2021 criminal charges are heard. (x) Mr Hyland is defending the 2021 criminal charges. (xi) Mr Hyland's own account of the incident in relation to the 2021 criminal charges and aspects of his admissions could be construed as domestic violence. (xii) The acknowledged impact that Mr Hyland's relationship with [Person A] has had on his mental health, studies and social relationships and the limited insight he has shown in reconciling with [Person A] after the 2019 criminal charges were heard. (xiii) Mr Hyland's inappropriate recording of [Person A] after they reconciled."
The Council also said that "the 2021 criminal charges is capable of being accepted as a serious domestic violence incident. It is reasonable for the community to expect the Council to be proactive and act with appropriate caution and not only take action after a criminal matter has been heard".
In relation to Mr Hyland's failure to comply with his obligations to notify the National Board of the 2019 and 2021 charges, the Council found that: "The Council is of the view that Mr Hyland failed to satisfy his legal obligations to notify the National Board of the 2019 and 2021 criminal charges. We note that despite being aware of his reporting obligations as of 17 June 2021, on the day of the section 150 hearing, 6 weeks later, Mr Hyland had still not complied with his notification requirements."
Mr Hyland has pleaded "not guilty" to the 2021 charges. At the time of the s 150 hearing before the Medical Council, the criminal charges were listed for hearing before the Local Court on 22 October 2021. The interim ADVO was listed for the same date. Since that time, because of the effects of Covid-19, the hearing has been vacated. It is now likely that the hearing will not take place until next year.

Principles relevant to the Tribunal's power to stay the suspension decision

Power to stay a decision

The Tribunal has power to make an order staying the suspension decision until the appeal has been finalised, but only if the appeal is an appeal "with respect to a point of law". Section 165L(2) of the National Law gives the Tribunal that power: The Tribunal may, in respect of an appeal under section 159B, make an order staying the decision of the Council appealed against until the appeal has been disposed of.
The appeal is under s 159B(1) of the National Law. That provision states that: A registered health practitioner or student who is the subject of action taken by the Council for the health profession under section 150, 150A or 150C may appeal, with respect to a point of law, to the Tribunal.

Legal principles

The National Law does not specify the factors to be considered in determining whether the power to stay the operation of a decision under appeal should be exercised. The Tribunal has summarised relevant matters for consideration both in the context of proceedings under the National Law and more generally.
In Segal v Medical Council of New South Wales [2020] NSWCATOD 86 at [43]-[68], the Tribunal set out the legal principles relevant to a stay application in this context. The salient principles can be summarised as follows: 1. the power to grant or refuse a stay is discretionary; 2. the onus of establishing a proper basis for the stay is on the applicant for the stay; 3. the Tribunal should assess the strength of the proposed appeal - in particular whether the appellant has an arguable case; 4. a stay may be granted on terms that are fair to all parties - this may involve weighing the balance of convenience and the competing rights of the parties. Relevant factors include: whether the appeal will be rendered nugatory if a stay is not granted, the prejudice to the parties, and whether the hearing can be expedited.
These principles are essentially the same as those articulated by Wright J in the context of the stay power in s 43 of the Civil and Administrative Tribunal Act 2013 (NSW) (Tribunal Act). His Honour summarised those principles in Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 at [9]: (citations omitted): "(1) Generally, a successful party is entitled to the benefit of the decision or orders that the party has obtained at first instance, but a stay may be granted where the appellant has demonstrated an appropriate case to warrant the exercise of discretion in its favour - s 43(2) and (3) of the Act. (2) In practical effect the onus is on an applicant for a stay to make out a case that it is appropriate for the court to make such an order. (3) The mere lodgement of the notice of appeal is insufficient, of itself, to demonstrate that it is an appropriate case to warrant the granting of a stay. (4) An order staying the operation of a decision or orders will generally be appropriate where such an order is reasonably necessary to secure the effectiveness of the appeal - s 43(3) of the Act. This is similar to, if not the same as, the considerations applied by the Courts that where there is a risk that an appeal will prove abortive if the appellant succeeds and a stay is not granted, or where unless a stay is granted an appeal will be rendered nugatory, the discretion should generally be exercised in favour of granting a stay. (5) The Tribunal may also take into account the strength or otherwise of the case of the party seeking the stay. This consideration may be particularly relevant when it is plain that an appeal, which does not require leave, has been lodged without any real prospects of success and simply in the hope of gaining a respite against immediate execution of the decision. (6) The Tribunal's power to grant a stay includes a power to make such an order subject to such conditions as the Tribunal specifies. (7) In exercising the discretion the Tribunal will also weigh the balance of convenience and the competing rights of the parties and may impose appropriate conditions so as to achieve a result that is fair to all parties. (8) Finally, the overriding principle in an application for a stay is to ask what the interests of justice require."

Grounds of appeal

A relevant principle when determining whether to exercise the discretion to grant a stay is the strength of the appeal and, in particular, whether Mr Hyland has an arguable case. It is not my role in the context of these proceedings to determine whether Mr Hyland would succeed on appeal.
The amended Notice of Appeal sets out the following grounds of appeal: "(a) The reasons given for the suspension order do not demonstrate that it was either necessary or appropriate to make that order for the protection of the health or safety of any person or persons or otherwise in the public interest. (b) The Suspension Order is so unreasonable that the decision is unlawful."
In further submissions dated 12 October 2021, Mr Hyland characterised the first ground of appeal as being an "inadequate reasons" ground. That was the first time the Medical Council had understood that to be the basis of the ground of appeal. Nevertheless, the Council's lawyer was content to address that ground as best she could.
As expressed, both these grounds of appeal are appeals "with respect to a point of law": National Law, s 159B(1) and DZR v Medical Council of NSW [2019] NSWCATOD 143 at [13]-[14].

Inadequate reasons

According to Mr Hyland, the Medical Council's reasons for deciding to suspend his registration "are simply too brief as to why suspension was found to be warranted in this case". At pp 18-21 of the reasons, the Medical Council listed numerous matters "relevant to its determination". Thirteen of those matters were re-stated at p 24 of the reasons. Mr Hyland submitted that the Council's reasons "do not disclose how each of these factors was taken into account or what weight was afforded to them". Secondly, the Council failed to provide adequate reasons for its conclusion at p 23 that: "The public confidence in the medical profession, including medical students, is likely to be eroded where a medical student has been charged with committing serious domestic violence related criminal acts carrying the possibility of imprisonment."
Mr Hyland submitted that that proposition was not self-evident particularly where he had been acquitted of the 2019 charges and has pleaded not guilty to and "seriously disputes" the 2021 charges.
As to the requirements of an administrative decision maker to give adequate reasons for a decision, Mr Hyland cited Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. At 259 of that decision Kirby P stated that a judge "is obliged to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principle contested issues". Mr Hyland did not elaborate on the content of the requirement to give adequate reasons except to quote a passage from a Victorian Supreme Court decision - Medical Board of Australia v Liang Joo Leow [2019] VSC 532. At [64] Niall JA stated that: "The fact that the power exercised by the Tribunal was discretionary and that the criteria for its exercise (public interest and public confidence) were matters of broad judgment and impression, did not relieve the Tribunal of the obligation to provide reasons. However, the path of reasoning for such conclusions will often be exposed by identifying the matters that are taken into account and the weight accorded to them. The evaluation of the competing considerations is often analysed in terms of weight, but that is not to introduce an empirical tool of analysis. Weight is used in the sense of ascribing the force of persuasion to particular factors that point in different directions. For the purpose of giving reasons, it is sufficient if the decision-maker identifies those factors that are taken into account and, to the extent possible, explains why an ultimate consideration is reached having regard to all of the material. In my view, that occurred here."
I agree with Niall JA that the path of reasoning "will often be exposed by identifying the matters that are taken into account and the weight accorded to them". However, I do not take His Honour to have been saying that a decision which does not expressly accord weight to those matters is necessarily inadequate. Reasons for decision need only meet a "minimum acceptable level". In Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Basten JA held at [48] that: "When an appellate court is invited to find that a trial judge provided inadequate reasons, it is important to understand the nature of the function being invoked. It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. Rather it is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power. Transparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality. (Emphasis added)"
I accept that the Council listed many matters as being relevant to the final decision, including the presumption of innocence, but did not say expressly how much weight that matter, or any other matter, should be accorded. However, in accordance with observations like that of Basten JA in Resource Pacific Pty Ltd v Wilkinson, this ground of appeal has low prospects of success.
The second example of inadequate reasoning was that it was not self-evident that public confidence in the medical profession is likely to be eroded if a person in Mr Hyland's situation is permitted to continuing studying. That was said to be the case because Mr Hyland is entitled to the presumption of innocence in respect of the 2021 charge and was acquitted of the 2019 charges.
It is apparent from the Council's decision that it took into account much more than the bare fact that Mr Hyland had been charged with the 2019 and 2021 matters. The Council questioned Mr Hyland closely and expressed the view at p 19 of the reasons that the "facts supporting the charges make serious allegations of domestic violence against Mr Hyland". The Council focused on the objective seriousness of the allegations after taking into account Mr Hyland's detailed responses. As formulated, this ground of appeal has low prospects of success.

Legal unreasonableness

The second ground of appeal is legal unreasonableness. Mr Hyland focused on the following sentence in the reasons for decision at pp 24-25: "The Council finds that Mr Hyland's actions the subject of the 2021 criminal charges, taking into consideration the 2019 criminal charges as outlined above, has the potential to bring the medical profession into disrepute if it is not clear to the public that the Council does not sanction domestic violence and the Council and medical profession are proactive in dealing with such issues as they arise in accordance with community expectations."
According to Mr Hyland, his ongoing registration cannot amount to the sanctioning of domestic violence by the Medical Council, or undermining the public confidence in the medical profession. That is the case because he was acquitted of the 2019 charges, disputes the 2021 charges and is entitled to the presumption of innocence.
Citing Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, Mr Hyland contends that the Medical Council's decision was so unreasonable as to be unlawful. In Minister for immigration and Citizenship v Li (2013) 349 CLR 332; [2013] HCA 18 the High Court made the point that in the exercise of a discretion, there is an area of "decisional freedom". The Court went on at [28]: "However the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense."
In BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 277 FCR 420; [2020] FCAFC 94 ("BHL19") at [134] Bromwich J (White J agreeing), stated that there is an area of "decisional freedom" where "reasonable minds might differ as to the correct decision or outcome". It is only if the outcome falls outside the area of decisional freedom that it can be said to be legally unreasonable. Bromwich J went on to state that "in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the provisions of the statute which confer the relevant power." In this case, that provision is s 150 of the National Law. The Council must be satisfied that it is appropriate to suspend a student's registration "for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest".
The way Bromwich J explained the legal unreasonableness ground in BHL19 at [136] captures Mr Hyland's submission on this ground: ". . . an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the Court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes."
The Tribunal's decision, and particularly the sentence quoted above at [34] is not a clear example of being unable to comprehend from the Council's reasons how the decision was arrived at. I agree that allowing Mr Hyland to continue to study does not necessarily mean that the Council is sanctioning domestic violence. But the Council also mentioned the presumption of innocence as a consideration it took into account and gave a detailed account of Mr Hyland's version of events. As formulated, this ground of appeal has low prospects of success.

Balance of convenience and competing rights of the parties

A stay may be granted on terms that are fair to all parties. That involves weighing the balance of convenience and the competing rights of the parties. Relevant factors include the prejudice to the parties and whether the hearing can be expedited. The overriding question is what the interests of justice require.
In his statement, Mr Hyland referred to the prejudice he would experience if the suspension were to continue. The suspension decision was made on 3 August 2021, three weeks before he was due to finish his third clinical placement for 2021. Mr Hyland was due to complete two further rotations starting in October 2021. He anticipates that if the suspension is lifted, he will still be able to complete these placements before the end of 2021. That understanding was confirmed in a letter from Dr Graeme Horton dated 13 October 2021 and provided on 15 October 2021, two days after the stay hearing. By consent, Mr Hyland sought to re-open the evidence for the purpose of tendering that letter. I am content to re-open the hearing for that purpose as there is no prejudice to the Medical Council if I take it into account. Dr Horton wrote that: "We expect that if he is able to recommence studies in Semester 2 by 20th October 2021, that he would have the opportunity to complete clinical placement and other requirements that are necessary to pass Year 5 and thereby complete the Bachelor of Medicine Program. Commencing on the 20th October 2021 would enable Cameron to complete six weeks of clinical placement as well as completing other assessment requirements."
That would mean that he could be ready to start work as a junior doctor in January 2022. If the suspension is not lifted, Mr Hyland says that he will have to repeat the first semester of 2022 and apply for a position commencing in January 2023.

Conclusion

The paramount consideration is protecting the health and safety of the public. The Council took into account both the evidence (including what Mr Hyland had to say) and numerous relevant considerations (including the presumption of innocence). Based on those matters, the Council was satisfied that it was appropriate to suspend Mr Hyland's registration in the public interest. An appeal from that decision on the grounds of either inadequate reasons or legal unreasonableness has low prospects of success.
I accept that if the stay is refused Mr Hyland will not be able to complete his studies this year. The appeal has been expedited and will be heard in just under a month's time, on 17 November 2021. However, even if the appeal is successful, it will be too late for him to finish his clinical placements. In addition, the 2021 charges will not be heard until 2022 so there will be no opportunity until then for Mr Hyland to apply to the Medical Council for a review of the suspension decision. These considerations are relevant but given the low prospects of a successful appeal, the interests of justice require that the application is refused.

Orders 1. The application for a stay of the decision to suspend Mr Hyland's registration as a medical student is refused. 2. Pursuant to cl 7 to Schedule 5D of the Health Practitioner Health Practitioner Regulation National Law (NSW), the name and address of Person A is not to be disclosed or published.

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: 21 October 2021

At a glance

Court

Decision date

Source

Judgment (13 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (12)

Cited By (4)