Kirby v Dental Council of New South Wales

NCAT Occupational|2016-10-27|Before: The Hon J

6; (1994) 68 ALJR 179 Romeo v Asher (1991) 29 FCR 343, [1991] FCA 201 Roylance v General Medical Council (No 2) [2000] 1 AC 311 Saedlounia v Medical Council (NSW) [2015] NSWCATOD 53 Simpson v Dental Council of NSW [2016] NSWCATOD 101 Stollery v Greyhound Racing Control Board (1972) 128 CLR 509; [1972] HCA 53 Webb v The Queen(1994) 181 CLR 41 [1994] HCA 30 Texts Cited: Professor G Dal Pont, Lawyers' Professional Responsibility, (Sixth Edition) Other: The Hon J D Heydon, Reasons For Ruling on Disqualification Applications, Royal Commission into Trade Union Governance and Corruption Category: Principal judgment Parties: David William Kirby (Applicant) Dental Council of New South Wales (Respondent) Representation: Counsel: J Agius SC (5, 6, and 7 October 2016 Applicant) M Condon SC (27 October 2016 Applicant) A Horvath & A Karlozian (Respondent) File Number(s): 1620045 and 1620110 Publication restriction: Pursuant to Schedule 5D clause 7 of the Health Practitioner Regulation National Law (NSW), publication or disclosure of the name, address or any evidence or information which might tend to or lead to the identification of the names of any patient identified in these proceedings is prohibited.

REASONS FOR DECISION

The appellant, Dr David Kirby, appeals in respect of two decisions of the Dental Council of NSW (the Council or the respondent); a decision of 18 December 2015 (the First Decision) and a decision of 12 February 2016 (the Second Decision).

Background

The following matters are not in contention and the Tribunal makes the following findings.
Dr Kirby has been registered with the Australian Health Practitioner Regulation Agency (APHRA) as a general dentist since 7 February 1990.
On 6 August 2015, the Health Care Complaints Commission (the Commission) received a complaint from a dentist, Dr Andrew Green (the Complaint, or Dr Green's Complaint) alleging that a patient (Patient A) had informed him that she had been diagnosed with a basal cell carcinoma of the nose and had been seeing Dr Kirby for treatment. The Complaint also alleged that the treatment being performed by Dr Kirby was the administration of a substance called Cansema. [1] The Complaint relevantly stated: My complaint I recently saw this patient who has been a long standing patient of the practice since 1992. She told me she was diagnosed with a [basal cell carcinoma] of the nose and had been seeing Dr Kirby for treatment of this cancer. Treatment involved administration of an illegal substance CANSEMA. The main issues I am concerned about are: This treatment would be outside of the normal scope of practice for a dentist and not considered best practice. It places the patient at considerable risk of metastases.
On 18 August 2015, the Commission provided the Complaint to Dr Kirby and sought a response. Dr Kirby responded on 19 August 2015. He denied the allegations, and stated that Patient A was not his patient and that he had no medical records relating to her.
On 8 October 2015, pursuant to s 145A of the National Law, the Commission and the Council had a joint consultation whereby it was agreed to refer Dr Green's Complaint to the Council's Complaints and Notification Committee (the Committee). On 21 October 2015, the Council wrote to Dr Kirby seeking a response to Dr Green's Complaint. That response was provided on 4 November 2015. Dr Kirby stated that he did not consider it necessary to provide a further response and relied on his letter of 19 August 2016.
On 6 November 2015, the Committee (comprising Dr Anthony Burges (Chair), Drs P Burns, S McGlynn, J Pearman and Mr D Owen) met. Before the Committee were a brief to the Council and Dr Kirby's practitioner history.
The brief to Council comprised Dr Green's Complaint, Dr Kirby's response to the Commission dated 19 August 2015, Patient A's dental records, and the response of Dr Kirby to the Council dated 4 November 2014. The brief included the following "background" which relevantly states: Dr Andrew Green alleges that [Patient A] informed him that she had been diagnosed with a [basal cell carcinoma] of the nose and had been seeing Dr David Kirby for treatment which involves the administration of an illegal substance called "Cansema". In Dr Kirby's response to the [Commission], he has denied ever seeing [Patient A] in any capacity or ever providing such treatment. Dr Kirby has not provided medical records for [Patient A]. The Commission also noted that [Patient A] denies ever seeing Dr Kirby for treatment. Dr Green alleges that Dr Kirby told Dr Green that he has treated 12 other patients the same way. Ms Amy Bunting, the dental nurse and the Practice Manager at Dr Green's Clinic has advised the Commission that she was present when [Patient A] told Dr Green that Dr Kirby is treating the cancer on her nose with Cansema under the direction of the local solicitor. Please note - On 9 August 2012, Dr Benjamin Negoescu made the same complaint that Dr Kirby was injecting cancer patients with an unknown substance claiming it would cure their cancer. The substance is banned by the Therapeutic Goods Administration.
The practitioner history referred to four other complaints concerning Dr Kirby. These were as follows: 1. First, a complaint received on 3 July 1996. It related to an advertising breach by Dr Kirby. The complaint was disposed of by 7 October 1996, with Dr Kirby being cautioned by the Dental Board. 2. Secondly, a complaint received on 8 December 1997. This also related to an advertising breach. This complaint was dismissed on 4 May 1998. 3. Thirdly, a complaint received on 6 August 2012, made by a former employee dentist of Dr Kirby's practice, related, inter alia, to a breach of his employment contract. This compliant was discontinued on 9 August 2012. 4. Fourthly, a complaint received on 10 August 2012. The Practitioner History states: Claims Dr Kirby injecting patients with an unknown substance claiming it would cure cancer, this substance is banned by the TGA. This complaint was discontinued on 23 August 2012.
The Committee resolved to recommend to the Council that it request an inspection of Dr Kirby's dental premises. The reasons for this decision were: Kirby denies treating patient. Need to determine if unlicensed/illegal product is being used. Cansema sounds like a very nasty product and would be a source of concern.
The Committee's recommendation went before the Council at their meeting later that day. That meeting was attended by (what was described by the respondent as) the "full Council" of 12 members, [2] which included Dr O'Reilly, [3] Dr Fryer and Ms MacDougal, who made the First and Second Decisions.
The Council accepted the recommendation and passed the following resolution: Members resolved to authorise an inspection of Dr Kirby's practice in Orange by an authorised person to retrieve the record of the subject patient [Patient A] inspect the records of Dr Kirby's practice to ascertain if any patients are receiving this treatment, whether there is any evidence to support the complaint and to assess Dr Kirby's compliance with the Dental Board of Australia's guidelines on infection control.
On 27 November 2015, Dr White attended Dr Kirby's surgery to conduct the inspection. A copy of his report was provided to the Council on or around 1 December 2015. The report relevantly stated: I explained the purpose of my visit to Dr Kirby. The [Council] had requested that I inspect the practice and examine records to investigate if an unapproved product cansema had been administered to patients, in particular [Patient A]. l was also to conduct an infection control audit. Dr Kirby denied ever using the product and stated "the claims were vexatious in nature from another dentist". Cansema suppliers recommend that the product be stored under refrigeration. l examined the refrigerator for used for dental materials and could find no unapproved materials. The infection control audit was then conducted. This audit took approximately two hours, during this time, Dr Kirby assisted with the audit. The practice is not compliant with infection control requirements and represents a risk to public safety. Findings are detailed in the attached infection control checklist. At the completion of the infection control audit, I explained to Dr Kirby that l needed to examine patient records to complete the audit as requested by the [Council]. . . . A computer search for [Patient A] did not find a patient record. [Dr Kirby's receptionist] Ms Jones advised me she was sure she could remember [Patient A] as a patient and was surprised not to find the corresponding patient record. Ms Jones explained the practice had gone paperless during 2013 and next a search of the paper records was undertaken. Again Ms Jones advised that she was surprised to find no record. Computer records were next examined in the period immediately prior to August 2012 when Dr Ben Negoescu made a complaint that Dr Kirby was "injecting patients with an unknown substance claiming it would cure their cancer. The substance is banned by the Therapeutic Goods Administration". A non-compliant patient record was discovered for a patient [Patient B]. [4] The record was discovered in Dr Kirby's computer appointment book in May 2012. The appointment for [Patient B] was in Dr Kirby's column in the appointment book. Ms Jones opened the attached patient records as requested, "cancema" was observed to be in the notes. The patient record for [Patient B] is highly irregular and contains a number of entries referring to "cancema". For example, entries from 22/01/2009 - 04/11/2009 referred to "cancema" radium weed. A record for 30 October 2010 refers to a patient with kidney problems and a recommendation of cancema or selenium. Further, references are made to treatment of more than one patient, and in areas such as the nose, scalp, eye area, which would be unusual for a general dentist to be treating. I also note comments in the patient record relating to real estate (04/01/2011), which again would not be expected to be seen in the clinical record written by a dentist 2011. . . . The patient record for [Patient B] is highly irregular and contains a number of entries relating to "cansema", this requires further investigation. I note that the [Therapeutic Goods Administration] website states that it is not aware of any credible, scientific evidence that cansema can treat cancer. Further the [Therapeutic Goods Administration] notes that cansema is a corrosive salve that essentially burns off layers of skin and surrounding normal tissue. The practice is not compliant with infection control requirements and represents a risk to Public safety. [5]
On 2 December 2015, the Council was provided with a document headed "Consultation with Council Member: Consideration of Appropriate Course of Action". This document relevantly states: Source of notification of concern: Notification by Dr Andrew Green to the Health Care Complaints Commission. Summary of incident/concern: In his complaint Dr Green states that [Patient A]: is a long-standing patient of his practice since 1992. [Patient A] inform Dr Green that she was diagnosed with a [basal cell carcinoma] of the nose and that she was receiving treatment from Dr David Kirby, a general dentist, involving the administration of an illegal substance (CANCEMA). Dr Green claims that it places the patient at considerable risk of metastases and Dr Kirby is treating patients outside of the normal scope of practice for a dentist. Dr Kirby provided his response the Commission on 19 August 2015 where he denied the allegations made by Dr Green in his complaint and stated that [Patient A] is not his patient or anyone else in his dental practice therefore, there are no medical records available relating to [Patient A]. [Patient A] also advised the Council that she had never been a patient of Dr Kirby. Dr Green spoke to the HCCC on 28/8/2015 and informed her [sic] that Dr Kirby told him that he has treated 12 other patients with similar conditions by administering 'cansema'. . . . This matter was considered by the Council on 6 November 2015 where it was resolved to have an authorised person inspect the premises. Dr Brendan White undertook this inspection on 27 November 2015. Dr White reported that one of the patient records is highly irregular and contains a number of entries relating to "cancema", and this requires further investigation and the practice is not compliant with infection equipped control requirements and represents a risk to public safety.
Attached to the Consultation with Council Member document were Dr Kirby's practitioner history; Dr White's inspection report, Dr Kirby's response to Council of 4 November 2015, and Dr Green's Complaint. The relevant contents of these documents are set out above. The Consultation with Council Member document suggests the following courses of action were available to Council: 1. Option A: To convene proceedings consistent to consider taking action pursuant to s 150; 2. Option B: To consult with the Commission with a view to referring the matter for investigation; 3. Option C: To refer consideration to the next Council/Committee meeting; 4. Option D: No need to convene s 150 proceedings on the basis that the triggering issue did not warrant consideration of urgent interim action.
This document was circulated to the whole Council for consideration whether to convene a s 150 inquiry in relation to Dr Kirby. By 3 December 2015, eight of the 12 Council members had responded and voted in favour of initiating an inquiry under s 150. [6] That same day, the Council wrote to Dr Kirby informing him that the s 150 inquiry would be convened on 11 December 2015.
The inquiry commenced on 11 December 2015. The Council comprised Dr O'Reilly, Ms Bell and, it seems, Dr Fryer. [7] The inquiry was adjourned that day due to concerns raised by Dr Kirby about Dr White's authorisation to conduct the inspection on 27 November 2015. At that time, it was anticipated that the inquiry would resume on 15 December 2015.
On 14 December 2015, the Council advised Dr Kirby that due to concerns with Ms Bell's availability, a new panel would be convened on 15 December 2015.
On 15 December 2015, a new inquiry was commenced. The Council consisted of Dr O'Reilly, Dr Fryer and Ms MacDougal. They explained that a new inquiry was being commenced because of the unavailability of Ms Bell. This new inquiry was not completed that day, and was stood over to 18 December 2015.
On 16 December 2015, Dr Kirby advised the Council that he would not attend the resumed inquiry on 18 December 2015 because he had patient commitments. He requested that the inquiry be adjourned to the new year. The Council informed Dr Kirby that it would be continuing with the inquiry on 18 December 2015. Dr Kirby confirmed that he would not be attending.
The Council proceeded with its inquiry on 18 December 2015. It decided to suspend Dr Kirby's registration as a dentist immediately. The Council was satisfied that that action was required to protect the health and safety of the public. In oral reasons delivered that day, Dr O'Reilly stated: The documents produced by Dr White established in the minds of the delegates Dr Kirby was engaged in practices that went beyond the practice of dentistry. Without providing a full list here, their concerns with the apparent prescribing practices of Dr Kirby which included excessive procurement of scheduled medication beyond what would be needed in the course of practising dentistry. At the hearing on 15 December 2015 the delegates attempted to ascertain from Dr Kirby how and in what circumstances he used Cansema like substances which he had admitted using by topical application to the skin of individuals. Cansema has been described in the literature as an escharotic substance. The answers given by Dr Kirby on that occasion left the delegates with great concerns about the use of this unregulated substance and were left with the view that continuation of this practice was a grave risk that the public. Dr Kirby informed the delegates that the use of this Cansema like substance occurred in various places in the local area including his own home to which his practice is attached.
On 4 January 2016, Dr Kirby wrote to the Council and seeking a review of that decision pursuant to s 150A.
On 27 January 2016, the Council published the First Decision. Those reasons relevantly state that: Among the written submissions made to the Council, Dr Kirby's solicitors had asserted that the conduct referred to in Dr Green's complaint was not undertaken by Dr Kirby in his capacity as a dental practitioner and that [Patient A] the patient referred to in the complaint was not his patient. It was said therefore that the conduct referred to in the complaint occurred outside the practice of dentistry. . . . One of Dr Kirby's submissions was to the effect that the Council did not have the power under the [National] Law to deal with Dr Green's complaint because that involved conduct which he said had occurred outside the practice of dentistry. . . . What is not in dispute is that [Patient B's z file], which Dr White asked the employee to print into which he has annexed to his report, was located in the patient records of the practice. The delegates will henceforth refer to this electronic record as the record for [Patient B]. This said by Dr Kirby however that this is a private record and not related to his practice of dentistry. The record for [Patient B] has information in it that is likely to be personal to [Patient B]. However it also contains information which on its face appears to relate to dental treatment performed by Dr Kirby for [Patient B]. Also on its face it refers to other individuals and their treatment. The word 'cansema' appears on this record. . . . The delegates believe that [Patient B] was in fact the dental patient of the practitioner at the same time that a cansema like substance was being applied to [Patient B]. [The delegates noted that 14 names were recorded in the record of [Patient B]]. The delegates wished to hear from the practitioner directly whether any of [these] names were receiving dental treatment from the practitioner . . . The delegates were also concerned that there are multiple entries related to the prescribing of restricted and scheduled medicines in the Patient Progress Notes at the same time that these names are recorded. The delegates wished to ask the practitioner about the clinical note on 3 April 2009 (page 61) where an Item (014) was used for a dental consultation but radium weed, iodine surface wash, puncture needles and cansema are recorded. The practitioner declined to answer questions related to the contents of page 61. . . . Delegates note that in [Patient B]'s record, there are a number of other names mentioned . . . The clinical notes recording these names are accompanied by notations regarding application of cansema and other observations as well is many prescriptions for scheduled and restricted pharmaceuticals. The delegates wished to ask the practitioner if these persons were a dental patient at the relevant time and further, to whom were these medicaments prescribed or supplied to. The practitioner declined to answer these questions. Dr Kirby had admitted his use of a substance similar to cansema to persons who had requested him to do so and that these persons were not his patients. These persons formed a support group of which he was a member. He said that these persons obtained this substance. He also said that this was a personal matter and outside the practice of dentistry. . . . The delegates wished to hear from Dr Kirby about his use of cansema and the application of this to individuals. Dr Kirby's submission dated 9 December 2015, he stated he "readily admits that he has applied a simple substance similar to cansema to persons, [who] have requested him to do so". . . . The delegates noted what to them seemed to be large quantities of the drug Ativan being prescribed, as well as Valtrex.
In relation to Dr Kirby's decision not to attend the hearing on 18 December 2015, the First Decision states that the delegates respected that Dr Kirby's decision was driven by his view that had ethical and professional obligations to attend to patients booked for surgery that day. However, the delegates stated that: [t]hey were concerned about the information posed in the documents before them, Dr Kirby's oral submissions regarding Dr Green's original complaint and the subsequent inspection of the dental practice by Dr White. The documents produced by Dr White established in the minds of the delegates Dr Kirby was performing services within his dental practice for which he was not qualified. There were concerns about the apparent prescribing practices of Dr Kirby which included excessive procurement of scheduled medication beyond what would be needed in the practice of dentistry . . . The delegates are also concerned about the comments made by Dr White that Dr Kirby's practice was not compliant with infection control requirements which represented a risk to the public. With respect to the histopathology that is involved with lesions of the skin such as Squamous Cell Carcinoma (SCC), Basal Cell Carcinoma (BCC), and Malignant Melanoma the delegates wish to understand the depth of knowledge possessed by Dr Kirby in the histological changes that occur with these lesions. Concern was expressed regarding interfering with these lesions without specifically knowing the type of carcinoma or tumour that was being dealt with.
The Council's reasons state that it could address the questions it needed to decide "in a general way" by the following observations: As noted before the delegates were satisfied that [Patient B's z file] represented a clinical record in Dr Kirby's practice. The references in the record to other persons accompanied by notations regarding the application of cansema as well as many prescriptions for scheduled and restricted pharmaceuticals satisfied the delegates that Dr Kirby was non-compliant in his practice. Some of the drugs being prescribed by Dr Kirby such as Valtrex, Ativan and Scheriproct are not drugs ordinarily used in the practice of dentistry. Although Dr Kirby said that his involvement with persons using cansema were not his patients, the overwhelming evidence in the opinion of the delegates was to the contrary. Without any explanation from Dr Kirby about this clinical record the delegates could not be satisfied that he knew and understood that he was practising in a manner that put the public at risk. In relation to the infection control issues identified by Dr White, Dr Kirby had not offered a satisfactory explanation. His reliance on an outdated inspection in 2002 by Dr Dalton demonstrated to the delegates that he did not understand the current guidelines. When considered with the matters raised in the clinical record the delegates were satisfied that Dr Kirby does not have the necessary standard of practice and knowledge and understanding to ensure the public's health and safety is protected. The delegates gave careful consideration to whether or not conditions must be imposed upon Dr Kirby. Dr Kirby's election not to answer the questions in relation to the clinical record was problematic for the delegates. The delegates were left with no explanation as to the matters that have been identified in these reasons. The delegates were concerned that members of the public could be led into believing that Dr Kirby had the necessary qualifications to treat ailments not related to the practice of dentistry, when this is not the case. Dr Kirby demonstrated no understanding of this position. The delegates were also satisfied the standard of record-keeping as it relates to the prescribing medications demonstrated conduct that was significantly below the standard that standard reasonably expected of a practitioner of an equivalent level of training and experience. Accordingly, the delegates considered they had no alternative than to suspend his registration.
On 12 February 2016, the Council held a review pursuant to s.150A. At the conclusion of the review, the Council decided that Dr Kirby's suspension be "lifted", and instead placed conditions on his registration. In summary, these conditions limited the procedures Dr Kirby was able to carry out, restricted him from undertaking solo dental practice prohibited him from dealing with Schedule 4 Drugs (restricted substances) or Schedule 8 Drugs (drugs of addiction) as defined by the Poisons and Therapeutic Goods Act 1966 (NSW), and imposed various reporting obligations. In addition, the Council imposed an additional private condition on Dr Kirby's registration.
On 24 March 2016, the Council published written reasons for its decision of 12 February 2016. Those reasons relevantly stated: The central issue for us to consider is whether Dr Kirby poses a risk to the safety or health of the public that warrants action to be taken by the Council. We might also consider whether it is generally for us to take action in the public interest. We are concerned about Dr Kirby's pattern of prescribing as shown in [Patient B's z file]. Even if this file is to be accepted as a private file (and the evidence in our opinion does not support that) the clinical file for [Patient B] shows a pattern of prescribing for conditions which in our opinion are not related to the practice of dentistry. In his written submissions and oral evidence given at the hearing, Dr Kirby maintained his view that the prescriptions that he provided to [Patient B] were for dental treatment only. We were not convinced by his arguments as both records produced to us suggest otherwise. To his credit, once Dr Kirby had read the definitions referred to in the Code of Conduct referred to above, he conceded that he had breached the boundaries of this personal life and his professional life. In addition, as noted in the Reasons for Decision dated 27 January 2016, there was a clear pattern of dental treatment been provided to [Patient B] that straddled the entries related to the application of cansema. In our opinion, Dr Kirby does pose a risk to the safety or health public and that the public interest does require us to take action. We are of the view that Dr Kirby's registration does not require suspension. We have no evidence before us that he lacks competence in his practice. . . .

Grounds of Appeal

By an Amended External Appeal Form filed 22 September 2016, Dr Kirby appealed against the First Decision and the Second Decision. His grounds of appeal are as follows: 1 The Appellant was denied procedural fairness in the proceedings before the Council on 11 December 2015, 15 December 2015, 18 December 2015, 27 January 2016, 12 February 2016 and 24 March 2016 by reason of the reasonable apprehension of bias due to the conduct of a member and or members of the Council, namely Dr O'Reilly (on all of the above dates), Dr Fryer (on all of the above dates) and Ms MacDougal (on all of the above dates save 11 December 2015). 2 The decision of the Council to suspend the registration of the Appellant on 18 December 2015 was against the evidence and the weight of evidence. 3 Upon the evidence no suspension of the registration of the Appellant should have been ordered. 4 The decision of the Respondent to suspend the registration of the Appellant was as a result of an error of fact and or law. 5 The decision of the Respondent to impose conditions on the registration of the Appellant. 6 Upon the evidence no conditions should have been imposed on the registration of Dr Kirby 7 In the alternative to (6) above, if any conditions were appropriate to be imposed by the Respondent on the registration of Dr Kirby on 12 February 2016 the conditions that were imposed (and each of them) were inappropriate and too onerous and/or severe and/or restrictive and were unnecessary and they severally impact and prevent Dr Kirby from practicing dentistry effectively, properly, and or appropriately and disadvantage and/or compromise patients and occasion loss of income and loss of reputation and ought to be modified or revoked (as the case may be). 8 The decision of the Council to impose conditions on the registration of Dr Kirby was as a result of an error of fact and/or law.
Particulars of the claim of a lack of procedural fairness by reason of apprehended bias were provided on 4 October 2017 by email from Dr Kirby's then Senior Counsel Mr Agius to Ms Horvath of counsel for the respondent. [8] The particulars were in the following terms: 1 Dr Green spoke to Dr O'Reilly and reported the matter to him in terms of Dr Kirby's first affidavit of 27 July 2016 and sought advice as to whether he was obliged to report the matter. The matter was the fact that [Patient A] had told him that Dr Kirby was treating her with Cansema for skin cancer. This was outside the boundaries of Dental Practice. Dr O'Reilly advised him that he was obliged to report matter to the Dental Council and that he should raise it with Dr Kirby. 2 On 6 November 2015 Drs O'Reilly and Fryer as members of the Dental Council and Ms MacDougal also a member of the Dental council, having received a Brief dated 26 October 2015 and a practitioner history of 22 October 2015 were party to the decision to appointment an authorized person to inspect Dr Kirby's practice as part of the investigation of the complaint made by Dr Green. That decision included a direction to assess Dr Kirby's compliance with the Dental Board of Australian's Guidelines on infection Control. The complaint did not raise any issue going to non compliance with the Guidelines nor any issue going to infection control. There was no complaint which was relevant to this instruction. 3 On 23 November 2015 3.02 pm "Eleanor", program officer, from the Dental Council (Vol 4 Tab 7 p.245) wrote to Dr White about his inspection of Kirby's practice and said "Please see the attached templates for Friday's inspections. I have included the infection control check list for Dr Kirby's inspection even though it is unrelated to infection control". 4 On 27 November 2015 Dr White inspected Dr Kirby's surgery and subsequently completed an inspection report and forwarded it to the Dental Council. On 3rd December 2015 the report was before Drs O'Reilly and Fryer and Ms MacDougal when as members of the Council they made the decision to initiate proceedings under s 150 of the National Law. 5 On 11 December 2015 Drs O'ReilIy and Fryer sat as part of the panel which convened a hearing to deal with the complaint. Ms Bell also formed part of the panel. Ms Bell made the statement attributed to her at page 2 lines 30-40. 6 On 15 December 2015 at 2pm a new hearing commenced, the previous hearing having been adjourned part heard to that date from the 11 December 2015. Ms Bell was said by Dr O'Reilly to be unavailable that day and the panel comprised Drs O'Reilly and Fryer and Ms MacDougal. The new proceedings were adjourned part heard to 18 December 2015. 7 Drs O'Reilly and Fryer and Ms MacDougal refused to adjourn the proceedings listed for 18 December 2015 when so requested by Dr Kirby on the 16th December 2015 when he realized that he had an operating list at the Dudley Private Hospital in Orange on 18 December and he was available the next week. Dr Kirby had not realized that he had that list on the 15th when the matter was adjourned to the 18th December. 8 The hearing continued in Dr Kirby's absence on 18 December 2015. 9 On 18 December 2015 the Dental Council wrote to Dr Kirby and indicated that "on 15th December 2015 the Dental Council decided to take immediate action under section 150 of the [National] Law" (see annexure A to affidavit 9 of 27 July 2016 of Dr Kirby). "The Council has decided to suspend your registration effective from 18 December 2016 10 On 12 February 2016 the Dental Council at a hearing reviewed the decision apparently made on 15 December 2016 and notified to Dr Kirby on 18 December 2015. The panel which conducted the review consisted of Drs O'Reilly and Fryer and Ms MacDougal referred to above 11. On 24 March 2016 the panel which had reviewed the matter published its reasons. As a result of the review the panel removed the suspension but imposed a range of conditions upon Dr Kirby's right to practice which in no way reflected the evidence before it. For example there was no evidence as to Dr Kirby's competence, indeed the panel has expressed the view that it had "no evidence before [it] that he lacks competence in his practice" yet the conditions limited Dr Kirby's practice and the procedures that he could carry out, prevented him from undertaking theatre work and or complex procedures, prevented him from undertaking implant work, removed his right to solo dental practice, removed his right to possess, supply, administer or prescribe and Schedule 8 drugs or any Schedule 4 drugs (including anti-biotics) with the exception of certain local anaesthetics. This severely limited his capacity to practice effectively and amounted to a de facto suspension.
In summary, Dr Kirby says that the First Decision is infected by an apprehension of bias, and that the decision is retrospectively void and should be quashed and set aside under s 79(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Dr Kirby submits that the Council's s150 inquiry should have been conducted by persons other than those who were involved in the initial investigation and the decision to appoint an authorised officer to inspect his surgery. Dr Kirby submits that the Second Decision to impose conditions on his registration was also infected by lack of procedural fairness such that it should be declared void. He submits that as there was no valid decision which could be reviewed pursuant to s 150A, the Second Decision should therefore be quashed and set aside.
We consider it appropriate to deal with this ground of appeal first. As the High Court of Australia noted in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [117]: An intermediate appellate court dealing with allegations of apprehended bias, coupled with other discrete grounds of appeal must deal with the issue of bias first. It must do this because, logically, it comes first. Actual or apprehended bias strike at the validity and acceptability of the trial and its outcome. It is for that reason that such questions should be dealt with before other, substantive, issues are decided.
This Appeal Panel is not an intermediate appellate court. Nevertheless, we consider that it is appropriate that we follow the principle as stated by the High Court: see Goodwin v Commissioner of Police [2012] NSWCA 379 at [16].

The First Decision

We consider that a fair summary of Dr Kirby's particulars in relation to the First Decision is as follows (and here we largely adopt the summary appearing at pars [32] and [33] of the Council's submissions): 1. Dr O'Reilly's contact with Dr Green prior to Dr Green making the Complaint; [Particular 1] 2. Dr O'Reilly and Dr Fryer having attended the 6 November 2015 Council meeting at which the Council decided to request that Dr White inspect Dr Kirby's practice); [Particular 2] 3. A program officer of the Council sending an email to Dr White on 23 November 2015 concerning the inspection; [Particular 3] 4. Dr O'Reilly, Dr Fryer and Ms MacDougal participating in the Council's 'virtual meeting' of 3 December 2015, which decided to initiate the s 150 inquiry. Material available to the Council included Dr White's 27 November 2015 report (with [Patient B's z file]), and an email from Dr Burgess (a member of the Council) dated 2 December 2015 in which he stated: Now in this case I think we have a really serious issue, I looked at cancema when the initial complaint was made and it is a very nasty substance with no clinical evidence it does any good, but potentially to cause significant harm and certainly outside the scope [of] dental practice. There is potential for a life threatening outcome here, the issue of poor infection control makes this even easier, this looks bad. I opt for option A. [Particular 4] 1. Dr O'Reilly and Dr Fryer attending the inquiry hearing on 11 December 2015; [Particular 5] 2. Dr O'Reilly, Dr Fryer and Ms MacDougal attending the inquiry hearings on 15 and 18 December 2015; [Particular 6] 3. The Council's decision to commence a new hearing (with Member MacDougal rather than Member Bell) on 15 December 2015, rather than continue with the 11 December hearing; [Particular 7] 4. The Council's continuation of the inquiry on 18 December 2015 in the absence of Dr Kirby, together with the reference to a "15 December" decision in the Council's cover letter of 18 December 2015. [Particular 8]
Dr Kirby also submits that at no time during the proceedings on 15 December 2015 did the delegates or any of them inform him that they had been members of the Council on 6 November 2015 and 3 December 2015.
We consider that the nub of Dr Kirby's complaint are Particulars (4) and (6), and, to a lesser extent, Particular (1). We note that the fact of Particulars (4) and (6) were not disputed by the Council. We do not consider that there is anything in particulars (2), (3), (5) or (7) as justifying a claim of apprehended bias.
As to particular (1), the Tribunal notes that the evidence of this contact is set out in Dr Kirby's affidavit of 27 July 2016 titled "Conversation with Dr Andrew Green on 31 July 2015". Dr Kirby there recounts a conversation he had with Dr Green who reported a conversation he had had with Dr O'Reilly. Dr Kirby states that, in effect, Dr O'Reilly told Dr Green to lodge the complaint about Dr Kirby treating one of his patients with "an illegal substance called Cansema". The submissions of each party raised an issue as to whether or not Dr Green should have been called by the other. Dr Kirby was not cross-examined about his affidavit of 27 July 2016 which sets out his account of the alleged conversation.
This evidence is hearsay, but this Tribunal is not bound by the rules of evidence and no objection was made to the tender of the affidavit by the respondent. However, as noted above, Dr Kirby gave evidence to the Council about the conversation on 15 December 2015.
The Tribunal accepts that Dr Kirby had a conversation with Dr Green on 31 July 2015. The Tribunal accepts that Dr Green had a conversation with Dr O'ReiIIy, and that Dr O'Reilly told Dr Green of his obligation to make a mandatory notification in respect of Dr Kirby. However, given the hearsay and untested nature of the evidence of that conversation, we make no further findings on the matter. In principle, we see nothing untoward in a dentist seeking clarification from a Council member of his or her professional obligations in respect of mandatory reporting.
The Tribunal also accepts that no member of Council informed Dr Kirby that they were members of the Council who made the decisions on 6 November and 3 December 2015 referred to above.

The Second Decision

Dr Kirby says that the following additional matters infected the Second Decision: 1. The same members of the Council who conducted the s.150 inquiry also conducted the s.150A review; 2. The Second Decision severely limiting his ability to practice and amounting to a de facto suspension.
We consider that only the first particular relied on is in fact a proper particular that the Second Decision was infected by bias. The Tribunal accepts, and the Council does not dispute, that the same members of the Council who made the Second Decision also made the First Decision.
The Tribunal does not accept that the second particular is, or could be, a particular of a claim of apprehended bias. That "particular" is a submission about the effect of the conditions imposed on Dr Kirby by the Second Decision.

Submissions of Dr Kirby

Dr Kirby submits that appearing to be impartial is a fundamental tenet of procedural fairness and natural justice. He relies on various authorities including Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]; Johnson v Johnson [2000] HCA 48 at [38]; and Carver v Law Society of NSW (1998) 43 NSWLR 71.
Ebner is authority for the well-recognised proposition stated by the plurality at [6] that: Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. (footnotes omitted)
Carver has been described as the "leading case" on the question of whether a Tribunal member is disqualified from sitting because he or she was a member of the professional governing body at a time when the respondent in the disciplinary proceedings was under investigation by the governing body: Khera v Law Society of New South Wales [2005] NSWADTAP 29 at [24]. In Carver, Powell JA, with whom Stein JA and Sheppard AJA, concluded at p 99: While I accept that the mere fact that a judge, or a person in the position of the judge, is a member of a body which is a party to a proceeding may not necessarily give rise to a reasonable apprehension of bias. .... nonetheless it seems to me that, any person, who was at a relevant time, a member of the governing body, or of a relevant committee of the body, which initiated the proceeding in question, is to be regarded as being disqualified by interest or association or both from sitting as, or as a member of, any Tribunal called upon to determine the proceeding in question, and it matters not that it may not be shown that the person in question took part in the relevant decision.

The Council's submissions

In summary, the Council has three responses to Dr Kirby's submissions.
First, Dr Kirby's reliance upon the test propounded in Ebner test is inappropriate, because that is the test applied to judicial decision makers, not administrative decision makers. The respondent submits that Dr Kirby has erred in ignoring the Council's statutory functions set out in the National Law, which modifies the Ebner test, as explained in McGovern v Ku-Ring-Gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209.
Secondly, the matters listed relied on by Dr Kirby, when properly understood in light of the principles in McGovern and the National Law, do not give rise to a reasonable apprehension of bias. Accordingly, the Council did not fail to accord procedural fairness to Dr Kirby.
Thirdly, the Tribunal does not have the power to declare the First Decision or the Second Decision void, nor does it have the power to direct AHPRA to have the First Decision or the Second Decision expunged from Dr Kirby's record.
The Council submits it is a "fundamental flaw" in Dr Kirby's bias application to rely on Ebner, without having regard to the particular functions imposed upon the Council by the National Law. The respondent submits that the application of that principle is not the same for a decision maker who is not a judicial officer. The Council submits that this distinction was referred to by the Court of Appeal in McGovern, and relies on the passage of Spigelman CJ at [6]ff that: [6] The case law on judicial decision-making is not a starting point when determining the application of the apprehended bias test in a specific statutory context. The statute must be part of the assessment from the outset and not treated as some kind of qualification of a prima facie approach. [7] How the apprehended bias test is applied is, as Basten JA indicates, affected by the statutory functions being performed and by the identity and nature of the decision-maker who is obliged by statute to perform those functions. The content of what the test requires varies from one context to another by a process involving, and usually determined by, statutory interpretation. [8] Each of the elements in the apprehension of bias principle requires a context-specific approach which may, and usually will, differ from that appropriate for a judicial decision-making process. [9] In each case the Court must have an understanding, in the particular context of: • What is the process involved in "resolving the question" that the decision-maker "is required to decide". • What may constitute an absence of "impartiality" or lack of "prejudice" in the mind of the decision-maker? • What might a "fair minded lay observer … reasonably apprehend" as to the above two matters. [10] These issues require a context specific approach, generally as a process of statutory interpretation…. [11] However, as Hayne J has put it, it is necessary to inquire "what kind or degree of neutrality (if any) is to be expected of the decision-maker": Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 565 [187]. That expectation will differ from one statutory context to another. As indicated above, the judicial paradigm is not universally applicable.

Dr Kirby's submissions in reply

In reply, Dr Kirby submits the National Law does not expressly exclude the rules of natural justice. He submits that, while the operation of the bias rule is undoubtedly influenced by its statutory context, the rule has been applied to strike down decisions made by bodies which had impermissibly completed investigation with decision-making: Ethell v Whalan [1971] 1 NSWLR 416 at 429; R v Optical Board of Registration [1933] SASR 1; Carver at 99 (in the passage set out above); and Hedges v The Australasian Conference Association Ltd [2003] NSWSC 1107.
Hedges considered the actions of a disciplinary Tribunal (namely the Seventh-Day Adventist Church, Professional Standards Committee A). Young CJ in Eq stated at [100] that: I should note that the [Professional Standards Committee] acted both as the authority which authorised the investigation and also the adjudicator. This is bad practice and usually this fact alone will amount to a denial of natural justice as a person whose ability to earn a living is jeopardised by an adjudication is entitled to have that adjudication performed by an independent group of people: [Carver].
Dr Kirby submits that the leading case is now Isbester v North City Council [2015] HCA 20; (2015) 255 CLR 135, relies on the following [32], [34] and [50], the most pertinent of which is [34] which states (footnotes omitted): The interest which the appellant alleges existed in this case is akin to that which a person bringing charges, whether as a prosecutor or other accuser, might be expected to have in the outcome of the hearing of those charges. It is generally expected that a person in this position may have an interest which would conflict with the objectivity required of a person deciding the charges and any consequential matters, whether that person be a judge or a member of some other decision-making body. In Dickason, Isaacs J referred to cases of this kind as instances of "incompatibility".
Dr Kirby submits that: 1. Dr O'Reilly had evidently formed the view from the outset that the complaint against Dr Kirby was serious; 2. The persons who eventually made the First Decision and Second Decision acted as "accusers"; 3. The opinions of Dr Burgess, as communicated to Dr O'Reilly, Dr Fryer and Ms MacDougal, were not communicated to Dr Kirby. Those opinions asserted, in unequivocal terms, that Cansema was a "very nasty substance", with the potential to cause "serious harm".

Consideration

In Pham v Legal Services Commissioner [2016] VSCA 256 at [237], the Victorian Court of Appeal referred to the view of Professor Dal Pont, Lawyers' Professional Responsibility, that investigations and proceedings into disciplinary matters must be conducted according to the standards of procedural fairness, that the requirements of procedural fairness are superimposed on the statutory framework by the general law, and so may extend beyond the specific requirements of the statute. The current (Sixth) Edition of that text states at [23.55]: Disciplinary investigations and proceedings must be conducted according to the standards of procedural fairness. These are superimposed on the statutory framework by the general law, and so may extend beyond the specific requirements of the statute. As disciplinary bodies and tribunals exercise adjudicate functions, a high standard of procedural fairness is expected, akin to that applicable in the courts.
In support of the proposition that the standards of procedural fairness are superimposed on the statutory framework by the general law, and may extend beyond the specific requirements of the statute, Professor Dal Pont refers to Romeo v Asher (1991) 29 FCR 343, [1991] FCA 201 in which Morling and Neaves JJ stated at [22]: The requirements of procedural fairness will, however, often extend beyond the specific requirements of the statute. What is necessary for a Committee to do in order to satisfy those requirements in any individual case will, of course, depend upon the particular circumstances of that case.
Professor Dal Pont states at 760 that, while bias can take many forms, in the case of disciplinary proceedings, it most commonly surfaces where the decision-maker has a connection with the dispute that creates the impression that he or she may incline towards a particular result. Professor Dal Pont states that the test for bias is whether there is a reasonable apprehension on the part of a fair minded and informed member of the public of a lack of impartiality in the decision-maker or adjudicator. In addition to Carver, Professor Dal Pont cites Roylance v General Medical Council (No 2) [2000] 1 AC 311, where Lord Clyde stated at 318: One essential element of a fair hearing is the requirement that the decision- maker should be impartial . . . impartiality calls for a state of mind which is free from any influences extraneous to the merits of the particular case, which is capable of a dispassionate inquiry and an objective judgment, and which is not turned aside by any motivation to favour one side as against the other.
Professor Dal Pont then states, citing Carver: This explains why, for instance, a person who was a member of a body or its relevant committee when it instituted disciplinary proceedings to be addressed by a tribunal is, as a general rule, disqualified from sitting on that tribunal on the grounds of apprehended bias.
As noted above, Dr Kirby accepts that the operation of the bias rule is influenced by statutory context. However, he submits that a series of cases have struck down decisions made by bodies which have "impermissibly conflated investigated with decision-making". The principal cases on which he relies are Ethell, R v The Optical Board of Registration, Carver, Hedges and Isbester.
Ethell was a decision of Supreme Court of New South Wales. The court considered the expulsion of the plaintiff, a member of the New South Wales Teachers Federation, by the Council of the Federation. The head note in the authorised reports states that the plaintiff had nominated for the position of erected member of the Education Advising Commission created by the Teaching Service Act 1970. The Council of the Federation resolved that the Federation's Executive take the necessary action to expel him, and in due course he was charged with a breach of the rules of the Federation in that he knowingly disobeyed a decision of the Federation. Relevantly, at the meeting of the Executive which dealt with the charge were present various persons who had taken an active part in bringing the charge and the plaintiff challenged the right to take part in the hearing. After the hearing of the charge, the Executive determined to expel the plaintiff. The plaintiff sought a declaration that his purported expulsion was invalid. The court granted the declaration. The Court held that p 427 (footnotes omitted): The next matter relied on by the plaintiff is the participation of biased persons in the decision of the Executive to expel him. There was no doubt that, in general terms, persons who are, or who acted so as to appear to be, biased should not take part in the decision to expel a member ... Leeson v General Council of Medical Education and Registration; Allinson v The General Council of Medical Education Registration; Dickason v Edwards, Australian Workers Union V Bowen (No 2). This general rule applies unless there is some provision to the contrary in the relevant Constitution, it statutory or otherwise, and it may also be qualified Powers and duties which are conferred or imposed upon the body under which the Constitution is required to deal with the charge which results in expulsion: Australian Workers Union v Bowen (No 2).
The Court then asked itself whether there were any members of the Executive who, in substance and in fact, could properly be regarded as accusers of the plaintiff in the matter of the charge laid against him by the executive. The court considered that there were.
Carver has been discussed above. Its underlying principles are consistent with Ethell and Hedges.
Dr Kirby relies on the test set out in Ebner stated by the plurality at [6] set out above. That is a well-known passage. However, at [4] the plurality noted that the principle had been applied to many other kinds of decision making and decision makers, the application of the principle in connection with decision makers outside the judicial system must sometimes recognise and accommodate differences between court proceedings and other kinds of decision making.
A similar statement is found in Isbester at [22]: It was observed in Ebner that the governing principle has been applied not only to the judicial system but also, by extension, to many other kinds of decision-making and decision-makers. It was accepted that the application of the principle to decision-makers other than judges must necessarily recognize and accommodate differences between court proceedings and other kinds of decision-making. The analogy with the curial process is less apposite the further divergence there is from the judicial paradigm. The content of the test for the decision in question may be different.
In making those last two statements, the plurality referred to Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 563; [2001] HCA 17 at [181] and Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 at 460 [70]; [2002] HCA 51 at [70]. In Legend Gleeson CJ and Gummow J stated at 531-2 ([71]-[72]): Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. … Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.
Hayne J agreed, but stated that he wished to add something about the rules about bias. His Honour said at [181] (footnotes omitted), in a passage relied on by the Council, that: The analogy with curial processes becomes even less apposite as the nature of the decision-making process, and the identity of the decision-maker, diverges further from the judicial paradigm. It is trite to say that the content of the rules of procedural fairness must be "appropriate and adapted to the circumstances of the particular case". What is appropriate when decision of a disputed question is committed to a tribunal whose statutorily defined processes have some or all of the features of a court will differ from what is appropriate when the decision is committed to an investigating body.
One of the authorities referred to by his Honour was National Companies & Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296. There Gibbs CJ stated at [15]: In Russell v. The Duke of Norfolk (1949) 1 All ER 109 Tucker L.J. said, at p 118: "The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth." The passage has frequently been approved - for example, by this Court in Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at p 552. The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise. Moreover, as Stephen J. said in Salemi v. MacKellar (No. 2) [1977] HCA 26; (1977) 137 CLR 396, at p 444, the rules of natural justice "may also vary from case to case although each be conducted before one and the same tribunal or person."
In Hot Holdings McHugh J relevantly stated at [70] (footnote omitted): While the test for a reasonable apprehension of bias is the same for administrative and judicial decision-makers, its content may often be different. What is to be expected of a judge in judicial proceedings or a decision-maker in quasi-judicial proceedings will often be different from what is expected of a person making a purely administrative decision.
His Honour referred to Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30, in which the Court had to consider whether the test also applied to an allegation of an appearance of bias on the part of a juror. In deciding that the test did in fact apply, Deane J stated that the "reasonable apprehension" test had been applied by the Court in cases involving statutory officers other than a judge, and referred to cases involving the Commonwealth Conciliation and Arbitration Commission, [9] the Greyhound Racing Control Board, [10] the Builders' Registration Board of Queensland, [11] the Australian Broadcasting Tribunal. [12] In the same decision, Mason CJ and McHugh J noted that the Court had applied the test to a Commissioner of the Australian Industrial Relations Commission. [13]
The Ebner test has also been applied to receivers and managers: Re Anglican Development Fund Diocese of Bathurst Board (Recs and Mgrs apptd) [2015] NSWSC 6; to liquidators: In the matter of Bellafountain Pty Ltd [2017] NSWSC 391; and to Court appointed referees conducting inquiries: Bettar Holdings Pty Ltd v Amelia 1822 Pty Ltd as trustee for the Waterloo Trust [2017] NSWSC 382.
The Tribunal notes that Isbester at [34] referred to Dickason v Edwards [1910] HCA 7, (1970) 10 CLR 243. lssacs J, (as his Honour then was) at 259 referred to disqualification from decision making based on "incompatibility": "if it is incompatible for the same man to be at once judge and occupy some other position which he really has in the case, then primâ facie he must not act as a judge at all". However, his Honour noted that there were two exceptions to this rule, including relevantly where the person was relieved from the operation of that rule by statute.
It appears to us that the words of Issacs J over 100 years ago neatly summarise the competing positions of the two parties. Both broadly agree that the test is that stated in Ebner, and followed in Isbester. However, they disagree on the extent to which, if any, the test or principle is modified, if at all, by the provisions of the National Law. In short, is the Council relieved from the operation of the relevant principle by the operation of the provisions of National Law?
Dr Kirby submits, by reference to Isbester, that there is nothing in the National Law, which either expressly or by necessary intendment, excludes the basic principles of statements of orthodox practice set out in Isbester. Dr Kirby notes that: 1. Section 41F provides that the Council may appoint committees to assisted in connection with the exercise of any of its functions; 2. Section 41G assumes that only two members of the Council are necessary to form a quorum to hear a s 150 or s 150A matter. While Division 3 of Part 8 confers investigatory and other functions on the Council, there is no requirement that all members of the Council participate in those functions, let alone more than the minimum number prescribed by s 41G; 3. The evident purpose of s 41G(1) is to provide an orderly mechanism by which the different functions of the Council under Division 3 can be dealt with by different members. Dr Kirby submits that it is telling that this is the only section where minimum quorum is prescribed; 4. While there may be advantages in the whole of the Council being involved in the investigatory and adjudicative functions, this does not however preclude the operation of fundamental general law rights. This is because the Council members may all too readily become, in substance and fact, accusers; 5. Dr O'Reilly had evidently formed a view from the outset that the complaint against Dr Kirby was serious. He told Dr Green that this was so and urged him to make a complaint that asserted there was a public risk: ss 140 and 141; 6. The persons who eventually made the First Decision and the Second Decisions authorised Dr White to check for infection control, despite there being no complaint about this topic; to this extent they acted as accusers; 7. The opinions of Dr Burgess, as communicated to Dr O'Reilly, Dr Fryer and Ms MacDougal were not communicated to Dr Kirby. Those opinions asserted, in unequivocal terns, that Cansema was a "very nasty substance" with the potential to cause "serious harm". While the Council asked Dr Kirby about Cansema (and like products), they did not put to Dr Kirby the views articulated by Dr Burgess, or the literature adverted to at p 4 of the First Decision.
On the other hand, the Council submits that it is a "fundamental flaw" in Dr Kirby's submissions to rely on Ebner, without having regard to the particular functions imposed upon the Council by the National Law. The Council submits that the application of that principle is not the same for a decision maker who is not a judicial officer. The Council submits that this distinction was referred to by the Court of Appeal in McGovern. The Council submits that the appropriate way to consider Dr Kirby's submissions is in accordance with the principles stated by the Court of Appeal in McGovern, namely that the starting point is to identify the statutory scheme which conferred authority on the Council.
The Council exhaustively sets out the various relevant provisions of the National Law, summarising the Council's functions and role in dealing with complaints. The submissions refer to Council's separate statutory obligation under s 150 whereby it must take action of suspending or imposing conditions. The Council submits that this is a power that sits apart from the Council's power to investigate complaints and can be initiated at any time irrespective of whether there is or is not a complaint on foot. The Council submits that, as with the complaint function, the National Law does not require that the Council quarantine any information learned by the Council in carrying out its various functions from the Council's exercising of its s.150 power.
The Council emphasises that, when it exercises the s 150 function, various matters need to be noted, including but not limited to the following: 1. The s.150 obligation is a mandatory obligation on the Council. There is no requirement that the Council have a complaint before it at the time it exercises this power; 2. Unless delegated, the decision to convene urgent proceedings under s.150 is a decision that must be made by the Council with a quorum of six; 3. The only statutory obligation on the Council when the Council meets to exercise the s.150 power is that contained in s.150B - which requires that the meeting be sound recorded; 4. At any time the Council may end a suspension or remove or alter any conditions imposed by the Council: s 150C; 5. The Council may review and vary a suspension under s 150A if the Council is satisfied there has been a change in the practitioner's circumstances that justifies the variation or setting aside of the decision: the National Law does not mandate that this review function be undertaken by a differently constituted Council, nor does it provide that any information previously obtained by the Council be quarantined when the review power is exercised; 6. In determining whether or not to take action under s.150, the Council's role is not to make findings of fact or a determination of the merits of any complaint: Saedlounia v Medical Council (NSW) [2015] NSWCATOD 53 at [169]. 7. The only provision of the National Law which prevents a member of a Council from being involved in any Council deliberation is if a member of the Council has a direct or indirect financial interest in a matter being considered by the Council; [14] 8. The powers under s.150 and 150A are "classical inquiry powers". When exercising those powers, the Council will be involved in numerous procedural steps and be required to make numerous decisions before a s.150 inquiry and s.150A review are held.
In summary, the Council submits that with the overlay of the National Law applied to the Ebner test, the answer to the question of what, with the appropriate level of appreciation of the institution, the fair-minded observer would expect that the Council when exercising its s 150 or s 150A power is that it be open to persuasion about whether or not to exercise the power, and that the only question for the Tribunal is whether the impugned conduct leads the Tribunal to believe that a fair minded and informed observer might reasonably believe that the Council might not be open to persuasion about whether or not to exercise the power. The Council submits that its decisions "are entirely in line" with the expectations of the Council under the National Law.
We accept that submission.
We accept that it has been established by a series of decisions of the High Court of Australia that the test to be applied in determining whether a judge is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: Michael Wilson Partners Limited v Nicholls [2011] HCA 48 at [31] per Gummow ACJ, Hayne, Crennan and Bell JJ.
That test or principle is also applicable to a tribunal: Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364. In Griffin, the Court of Appeal considered an appeal from a decision of this Tribunal, and whether there had been apprehended bias because of the presence of a particular member of the constituted Tribunal. The Court noted at [79], (footnotes omitted) that: This Court has held that the Administrative Decisions Tribunal, the predecessor to the Tribunal, was not a "court" for the purposes of s 77 of the Constitution. The Tribunal may well be in the same position. Nonetheless, the test for apprehended bias is that which applies to a court. The test is: " ...whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide." The test is objective and, in the case of the courts, is founded principally on the need for public confidence in the judiciary. (emphasis added)
We consider that this principle extends to other kinds of decision-making and decision-makers, including tribunals and here, the Dental Council, although its content may be different (Hot Holdings) and the operation of the test may be modified in light of the Council's statutory functions (McGovern, Legeng).
We accept the need to examine the relevant statutory framework, and we accept as correct, the Council's submission, founded on McGovern, that the case law on judicial decision making is not the starting point in determining the application of the apprehended bias test is a specific statutory context, and that how the apprehended bias test is applied is affected by the statutory functions being performed and by the identity and nature of the decision maker who is obliged to perform those functions.
Adopting McGovern, what then is the process that is involved in "resolving the question" that the relevant decision maker, that is the Council "required to decide"? The relevant provisions of the National Law are as follows.
Division 2, Councils [NSW], of Part 5A, New South Wales Councils [NSW], of the National Law relevantly provides: 41C General powers of Councils [NSW] (1) A Council has all the powers of an individual and, in particular, may do anything necessary or convenient to be done in the exercise of its functions. (2) However, a Council cannot employ staff. 41D Functions of Councils [NSW] A Council has and may exercise the functions conferred or imposed on it by or under this Law or another Act. 41E Membership of Councils [NSW] Each Council consists of the members prescribed by the NSW regulations. 41F Committees [NSW] (1) A Council may establish committees to assist it in connection with the exercise of any of its functions. (2) The members of a committee need not be members of the Council. (3) The procedure for the calling of meetings of a committee and for the conduct of business at the meetings is - (a) as decided by the Council; or (b) subject to a decision of the Council, as decided by the committee. 41G Councils' complaint functions may be exercised by 2 or more members [NSW] (1) A Council may appoint any 2 or more members of the Council to exercise the functions of the Council under Division 3 of Part 8. (2) The referral of a complaint by the members appointed is taken to be a referral by the Council.
Subdivision 7 Powers of a Council for protection of public [NSW] of Division 3 Complaints [NSW] of the National Law relevantly provides: 150 Suspension or conditions of registration to protect public [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so 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 - (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or (c) by order impose on a student's registration the conditions the Council considers appropriate. (2) A suspension of a registered health practitioner's or student's registration under subsection (1) has effect until the first of the following happens - (a) the complaint about the practitioner or student is disposed of; (b) the suspension is ended by the Council. (3) If a Council for a health profession is satisfied a health practitioner or student registered in the profession has contravened a critical compliance order or condition, the Council must - (a) suspend the practitioner's or student's registration until a complaint concerning the matter is dealt with by the Tribunal; and (b) refer the matter to the Tribunal as a complaint. (4) A Council for a health profession may take action under this section - (a) whether or not a complaint has been made or referred to the Council about the practitioner or student; and (b) whether or not proceedings in respect of a complaint about the practitioner or student are before a Committee or the Tribunal. (5) Without limiting the conditions that may be imposed under subsection (1)(b), a Council may impose a condition requiring the registered health practitioner to undergo a performance assessment, but the condition has no effect unless the Commission agrees with the imposition of the condition. (6) A Council must give written notice of action taken under this section to the registered health practitioner or student concerned. (7) If a Council delegates any function of the Council under this section to a group of 2 or more persons, at least one of those persons must be a person who - (a) is not a registered health practitioner or student in the health profession for which the Council is established; and (b) has not at any time been registered as a health practitioner or student in that health profession under this Law or a corresponding prior Act. 150A Review of certain decisions [NSW] (1) A registered health practitioner or student may apply to a Council for the review of a decision of the Council under section 150 to - (a) suspend the practitioner's or student's registration; or (b) impose conditions on the practitioner's or student's registration or alter conditions imposed on the practitioner's or student's registration. (2) On receiving an application for review, a Council - (a) may refuse to reconsider its decision if, in the Council's opinion, the application is frivolous or vexatious; or (b) must otherwise reconsider its decision, and in so doing must consider any new evidence or material submitted by the practitioner or student that the Council reasonably considers is relevant. (3) Following its reconsideration of a decision, a Council may - (a) affirm or vary the decision; or (b) set it aside and take any action the Council has the power to take under section 150. (4) A Council may vary or set aside a decision only if the Council is satisfied there has been a change in the registered health practitioner's or student's circumstances that justifies the variation or setting aside of the decision.
In Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31, the High Court indicated that the statutory requirement that a tribunal perform the functions assigned to it must prevail over and displace the application of the rules of natural justice. However, we discern no implication in the National Law that such fundamental requirements such as there be unbiased decision making is excluded by any or all of the provisions of the National Law. We note that s 41F provides that the Council may appoint committees to assist it in connection with the exercise of any of its functions. Section 41G assumes that only two members of the Council are necessary to form a quorum to hear a s 150 or s 150A inquiry. Division 3 of Part 8 of the Act confers investigatory and other functions on the Council, but there is no requirement that all the members of the Council participate in those functions, or a number greater than the minimum number prescribed by s 41G. We accept Dr Kirby's submission that it appears that the purpose of s 41G(a) is to provide an orderly mechanism by which the different functions of the Council under Division 3 can be dealt with by different members, and that it is significant that this is the only section where a minimum quorum is prescribed.
However, we accept that the question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made is largely a factual one, albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made. Ebner and Isbester indicate the necessity to establish a logical connection between the prima facie potential lack of objectivity in the decision maker, and the connection between that and the material that goes to bias or is likely to go to bias.
On 6 November 2015, Dr O'Reilly, Dr Fryer and Ms MacDougal considered the Complaint against Dr Kirby and a briefing paper containing a "background" that alleged that Dr Kirby had treated a total of 12 patients with Cansema. They resolved to authorise an inspection of Dr Kirby's practice because Cansema "was a very nasty substance". They then subsequently formed part of the Council which on 3 December 2015 resolved to initiate the s 150 inquiry. In doing so, they had before them information which alleged that Dr Kirby had treated 12 other patients "by administering cansema", alleged that a similar complaint had been made against Dr Kirby in 2012, and the email of Dr Burgess stating that Cansema was a very nasty substance with no clinical evidence it did any good, but potentially could cause significant harm and was outside the scope of dental practice with the potential for a life threatening outcome. Each of Dr O'Reilly, Dr Fryer and Ms MacDougal then undertook the s 150 inquiry resulting in the First Decision suspending Dr Kirby's registration.
We have referred above to the bias decision given by the Hon J D Heydon delivered during the course of the Royal Commission into Trade Union Governance and Corruption. Commissioner Heydon stated at [40], in remarks that we have been found to be very helpful: Counsel Assisting also made certain submissions about the role of a fair-minded lay observer. (Counsel Assisting's written submissions paras 15-18) The applicants did not appear to quarrel with these submissions. Counsel Assisting submitted that the fair-minded observer does not make snap judgments: Johnson v Johnson (2000) 201 CLR 488 at 494 [14]. He or she is taken to be reasonable: Johnson v Johnson (2000) 201 CLR 488 at 493 [12]. He or she knows commonplace things and is neither complacent nor unduly sensitive or suspicious: Johnson v Johnson (2000) 201 CLR 488 at 509 [53]; Helow v Home Secretary [2008] 1 WLR 2416 at 2418 [2], 2421 [14], 2427 [39]. Knowledge of all the circumstances of the case must be attributed to the fair-minded observer: Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293-4; Re JRL; ex parte CJL (1986) 161 CLR 342 at 355, 359, 368 and 371-2; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87-8 and 95. Counsel Assisting further submitted that the fair-minded observer was an informed one.
Commissioner Heydon then considered the position where the decision-maker was a judicial officer, and how the fair-minded observer will have regard to the fact that a judicial officer's training, tradition and oath or affirmation equip the officer with the ability to discard the irrelevant, the immaterial and the prejudicial. Commissioner Heydon referred to the statement of Lord Rodger of Earlsferry in Helow v Home Secretary [2008] 1 WLR 2416 at 2422 [23]: Even lay people acting as jurors are expected to be able to put aside any prejudices they may have. Judges have the advantage of years of relevant training and experience.
Commissioner Heydon then continued at [41]: In the same case, Lord Hope of Craighead said at 2418 [2]-[3]: The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious. … Her approach must not be confused with that of the person who has brought the complaint. … The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively. But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. … Then there is the attribute that the observer is "informed". It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines. She is able to put whatever she had read or seen into its overall social, political or geographical context. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.
Commissioner Heydon stated that the rule against bias, actual or apprehended, is directed to prejudgment incapable of being altered by evidence or argument. It is not directed to predisposition capable of being swayed by evidence or argument. He referred with approval to the joint judgment of Gleeson CJ and Gummow J in Legeng at 531-2 [71]-[72] extracted above. Commissioner Heydon also noted that in R v S (RD) [1997] 3 SCR 484 at 533-4 [119], (which he states was referred with approval in Helow v Home Secretary [2008] 1 WLR 2416 at 2435 [57]), L'Heureux-Dubé and McLachlin JJ said: It has been observed that the duty to be impartial "does not mean that a judge does not, or cannot bring to the bench many existing sympathies, antipathies or attitudes. There is no human being who is not the product of every social experience, every process of education, and every human contact with those whom we share the planet. Indeed, even if it were possible, a judge free of this heritage of past experience would probably lack the very qualities of humanity required of a judge. Rather, the wisdom required of a judge, is to recognise, consciously allow for, and perhaps to question, all the baggage of past attitudes and sympathies that fellow citizens are free to carry, untested, to the grave. True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind".
Following these observations and principles, we do not consider that a fair-minded observer might reasonably apprehend, in the circumstances of a s 150 inquiry, that each or all of Dr O'Reilly, Dr Fryer and Ms MacDougal might not have brought an impartial mind to the making of the First Decision, or that any or all of them had prejudged the issues by receipt of the various materials or by deciding along with the five other members of Council who voted to authorise the s 150 inquiry. We are not satisfied that any or all of them have been shown to be incapable of being able to be altered by evidence or argument.
As has been emphasized by the Council, and as is recognised in the authorities, and as we discuss below, the role of the Council in undertaking a s 150 inquiry is to protect the public. In cases such as this, where serious allegations have been made which, if true, could require suspension or cancellation of the appellant's registration, but the evidence is incomplete and further investigation is needed, the issue is not whether the allegations are proved, but whether the evidence establishes a risk to the public requiring imposition of a condition for protection of the public.
We do not consider that the fair-minded lay observer might reasonably apprehend a lack of impartiality by the Council in making the First Decision for a number of reasons. First, we do not consider that the Tribunal in authorising a s 150 inquiry was acting as an accuser. We consider that a member of the community would see a Council acting in its various forms, not acting as "accusers", but informing itself within its statutory processes in order to make an informed decision to protect the public.
Secondly, a fair-minded observer might conclude that the Council gave Dr Kirby the benefit of the doubt by ordering an independent investigation before "leaping" to any conclusion to suspend him, an investigation undertaken by an independent professional expert not being a member of Council or party to its decisions.
Thirdly, the timing of these events is relevant. If the Council had not proceeded with the 18 December 2015 meeting despite Dr Kirby's inability to attend, there would very likely have been no action taken for a number of weeks. The Council had information that Cansema was dangerous to the public. It was prudent and appropriate for the Council to have precautions in place before the Christmas break and a lay observer would be glad that it did.
Fourthly, many of the legal authorities to which we have referred do not consider situations which include an element of actual danger to the public.
We are conscious of the authority and reasoning of the Court of Appeal in Carver. However, that decision predated McGovern by many years. Were it not for the guidance of McGovern, we may have followed the observations of Powell JA in Carver, as accepted by Young CJ in Eq in Hedges, that it is bad practice for a committee to act both as the authority which authorises the investigation and also the adjudicator. While Young CJ in Eq noted that usually this fact alone will amount to a denial of natural justice as a person whose ability to earn a living is jeopardised by an adjudication is entitled to have that adjudication performed by an independent group of people, we consider that the role of the Council in undertaking a s 150 inquiry and protecting the public, militates against applying this principle in the circumstances of these appeals. As Commissioner Heydon observed at [45], "all cases in this field are in a sense fact-specific".
Having decided that a fair-minded observer would not reasonably apprehend, in the circumstances of a s 150 inquiry, that each of Dr O'Reilly, Dr Fryer and Ms MacDougal might not have brought an impartial mind to the making of the First Decision, we do not accept that the First Decision should be quashed or otherwise set aside on the grounds of apprehended bias. It follows that we do not consider that the Second Decision is voidable by reason of apprehended bias. Nor do we see any substance in Dr Kirby's submission that a s 150A inquiry ought not be undertaken by the same Council members that constituted the s 150 inquiry.
We turn now to the merits of the appeal.

Relevant provisions of the National Law

The provisions of the National Law relevant to Dr Kirby's substantive appeal are ss 3, 3A, 41, 150, 159 and 159C. These are set out in the Attachment to these reasons. We note that s 3(1)(a) provides that an object of the National Law is to establish a national registration and accreditation scheme for the regulation of health practitioners, and that s 3(2(a) provides that an objective of that scheme is to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered.
We further note that s 3A, which is an additional provision for NSW, provides that, in the exercise of functions under a "NSW provision", the protection of the health and safety of the public must be the paramount consideration.

Preliminary matter

There is one preliminary matter to deal with. Section 159 (3) of the National Law presently provides: The appeal is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council, may be given.
Prior to 15 May 2016, that subsection read: The appeal is to be dealt with by reconsideration of the matter by the Tribunal and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council when it considered the matter, may be given.
The two appeals were filed on 26 April 2016. Therefore, Dr Kirby submitted that the pre-15 May 2016 provision applied, by reason of both the common law and the Interpretation Act 1987 (NSW) (Interpretation Act)
The Council disagreed. In short, the Council submitted that the Tribunal exercised its powers having regard to all the material before the Tribunal and given the law as at the date of the appeal hearing. Counsel for the Council submitted that the s 159(3) that previously existed had no effect as at the time of the hearing.
As we pointed out to counsel for the parties at the hearing, this question was considered by the Tribunal in Khan v The Medical Council [2016] NSWCATOD 88. In that decision, Marks ADCJ, Principal Member, concluded that the termination of the issue was governed by the provisions of s 30 the Interpretation Act. His Honour concluded at [10] and [11]: In my opinion, this submission [of the respondent that amendment was the operative provision] does not give appropriate weight to the provisions of subsection (1)(e) which clearly provide that the amendment does not affect any ".... legal proceeding or remedy...." with respect to a right, or privilege, which had already accrued to the appellant. I would regard the entitlement to maintain an appeal under section 159 as a right and privilege, and as such preserved in the form in which it was created at the time of the institution of the appeal, and prior to the amendment coming into effect. In any event, it is not necessary that I consider this matter in any greater detail because I agree with the submission of the respondent that, in effect, the outcome of these proceedings is not affected in any way by the amendment to subsection (3). The essence of the appeal, as will be seen, is a consideration of the need to protect the health and safety of any person or persons, or any other matter which is otherwise in the public interest. The Act in its form prior to the amendment requires an identification of "the matter" which was before the delegates of the Council. The Act in its current form requires a consideration of the appeal against the suspension imposed or the refusal to end a suspension. This will also direct attention to the circumstances pertaining to the appellant in the context of the necessity or otherwise to impose a suspension.
We propose to follow the course adopted by his Honour, and agree with his comments, particularly that the essence of appeals of this nature is the need to protect the health and safety of any person or persons, or any other matter which is otherwise in the public interest.

General Principles

We do not understand the general principles that are to be applied in a s 150 inquiry, and as stated by the Council in its submissions, as being in dispute. These principles are, in summary, as follows.
Section 150 of the National Law provides an important power to protect the public by, relevantly, imposing conditions where interim action is warranted pending the determination of a complaint;
In determining whether or not to take action under s.150, it is not the Council's role to make findings of fact or to reach a determination of the merits of any complaint: Saedlounia v Medical Council (NSW) [2015] NSWCATOD 53. In that decision, the Tribunal noted at [169]: The purpose is protection of the public. In cases such as this where serious allegations have been made which, if true, could require suspension or cancellation of the appellant's registration, but the evidence is incomplete and further investigation is needed, the issue is not whether the allegations are proved, but whether the evidence establishes a risk to the public requiring imposition of a condition for protection of the public.
See too Simpson v Dental Council of NSW [2016] NSWCATOD 101 where the Tribunal noted at [101]: In other words, the Council/Tribunal does not determine whether or not the alleged conduct in fact took place, but whether there is a basis for satisfaction under s 150 that it is appropriate to suspend the practitioner for the protection of the health or safety of any person or persons or because the suspension is otherwise in the public interest.
Similarly, in Lindsay v NSW Medical Board [2008] NSWSC 40 at [79], Hall J commented (in respect of s 66 of the Medical Practice Act), that: An inquiry, hearing or interview process conducted for the purposes of the Board or its delegates determining the matters under s.66(1) could be considered to be preliminary or interim in nature or, as it was termed in the present proceedings, 'interlocutory'. Such a process, in the present case, as earlier observed, did not involve the making of findings of fact or the determination of the merits of any complaint. Any observations or conclusions expressed by the Board or its delegates under s.66 following an inquiry, hearing or interview, are, and can only be, strictly for the limited purposes of s.66(1), Such observations or conclusions are not to be equated to findings on material questions of fact as may be made by the Medical Tribunal in proceedings conducted by the Tribunal under Part 11 of the Act.
In other words, the Council's responsibility is not to determine whether the alleged conduct in fact took place, but whether there is a basis for satisfaction under s.150 that it is "appropriate" to impose conditions for the protection of the health or safety of any person or persons or because the imposition of conditions is otherwise in the public interest. In considering this question, it is the nature of the allegations that is of particular relevance.
In summary, as the Tribunal stated in Jiang v Psychology Council of NSW [2016] NSWCATOD 104 at [35]: In determining an appeal against s 150 orders, the Tribunal must consider afresh for itself whether or not it is satisfied that it is appropriate to suspend the appellant's registration for the protection of the health or safety of any person or persons or if satisfied the suspension is otherwise in the public interest. While the nature of an appeal pursuant to s 159 of the National Law is unsettled (see the discussion of the authorities in Burton v Osteopathy Council of New South Wales [2015] NSWCATOD 150 at [14] to [22]), it is clear that, in doing so, the Tribunal may receive fresh evidence, and evidence in addition to or substitution for the evidence which was before the Council when it considered the matter.

Evidence before the Tribunal

There was a large amount of evidence, generally admitted without objection, before the Tribunal.

Dr Kirby's evidence

Dr Kirby filed four volumes of materials numbering over 1200 pages which materials included some 29 affidavits sworn by him. These affidavits deal with a range of matters and in fact are a combination of factual evidence and submissions. For instance, one affidavit of the ten affidavits sworn by Dr Kirby on 27 July 2016 deals with a conversation he had with Dr Andrew Green on 31 July 2015. The form of the affidavit is completely appropriate in that it sets out in first person language the conversation between Dr Kirby ("I said . . .") and Dr Green ("Dr Green said . . ."). However, other affidavits are in fact submissions of Dr Kirby: see for instance his affidavit sworn 27 July 2016, the subject matter of this affidavit being described by Dr Kirby as "Conditions". While there is a small component of the affidavit which deals with conversations Dr Kirby had with an unnamed patient, the bulk of the affidavit deals with the difficulties Dr Kirby says he has encountered after the Council made the Second Decision.
Another example is Dr Kirby's affidavit dated 27 July 2016, described by Dr Kirby as "Detailed Reasons for Suspension". This affidavit alone, including exhibits, amounts to almost 100 pages in length. In this affidavit, Dr Kirby in great detail, provides extensive commentary on virtually every paragraph of the published reasons for the First Decision. The affidavit is also repetitious, in that it repeats material already stated by Dr Kirby in previous affidavits. For instance, in par 3.20 of the affidavit, he refers to another affidavit of the same date (namely affidavit number 9, "Summary of Reasons for Suspension 18 December 2015) which sets out 13 paragraphs of facts which Dr Kirby says were in evidence before the delegate on 15 December 2015 in relation to what Dr Kirby describes as the "cansema like substance issue". These facts are set out over two and a half pages of text. As they already appeared in one affidavit there was no need to Dr Kirby to repeat them in another.
The affidavits filed by Dr Kirby treat with a wide range of matters. It is convenient to describe their contents by reference to the description of the contents of the affidavits that Dr Kirby himself sets out in his index to his volumes of materials. The topics the subject of his affidavits include but are not limited to his conversation with Dr Andrew Green on 31 July 2015; correspondence about the Complaint; Dr White's inspection; the Council hearing of 11 December 2015, the Council hearing of 15 December 2015, events between 15 and 18 December 2015; events from 18 December 2015 to 12 February 2016; the council hearing of 12 February 2016; the operation the Conditions imposed by the Second Decision.
The respondent filed three volumes of material. These materials include the Published Reasons for the First Decision and Second Decision the transcript of the hearing relating to those reasons, the Complaint; various Dental Board of Australia guidelines; correspondence between parties and various patient records relating to Patient B.
As noted, overwhelmingly the evidence was tendered without objection. The important factual findings are set out above, including the Council's reasons for decision at the documents considered by it. We propose firstly to consider Dr Kirby's oral evidence, mainly given in response to Ms Horvath's lengthy cross-examination, and in response to questions asked by the Tribunal members.

Cross examination of Dr Kirby

The Tribunal was troubled by the evidence given by Dr Kirby during the course of his cross examination. Dr Kirby was a poor and unpersuasive witness. He regularly failed to give direct answers to questions, failed to accept straightforward and clearly correct propositions put to him by Ms Horvath when it would not assist his appeal, and gave evidence that was simply not credible. There were many aspects of Dr Kirby's cross-examination which concerned the Tribunal. Our principal concerns are as follows.
First, and of the gravest concern to the Tribunal, was Dr Kirby's concession that his application of Cansema had the potential to delay the diagnosis of skin cancer. He said that he was aware of this while he was doing so between 2009 and 2015. He agreed he failed to refer the Cansema group members to oncologists, in circumstances where he agreed that he had no professional knowledge of changes that occur in skin cancer lesions.
Dr Kirby gave very troubling and unsatisfactory answers to the questions posed by the professional members of the Tribunal on this issue. In response to questions from Dr Stimpson, Dr Kirby agreed that he had applied Cansema to skin lesions of members of the Cansema group. He told the Tribunal that he also applied the Cansema to skin that was not affected by lesions. He justified this on the basis that he had been told by members of the group that the Cansema could be used as a diagnostic tool. He said that he personally did not believe this to be the case, but did not know what the reaction was that he observed when Cansema was applied to normal skin.
Dr Kirby agreed that, when he applied Cansema to a lesion, the lesions may or may not have been skin cancers. He was asked whether he agreed that, in applying Cansema to the lesions, the resulting reaction was to destroy the surface layers of the Epithelium rendering diagnostic biopsy impossible. In answering this question, to which the answer was clearly yes, Dr Kirby initially said that he never observed any burns after the application of Cansema to lesions. We reject that evidence. The photographs of Patient B before the Tribunal clearly establish that the patient's skin had suffered a chemical burn. Dr Kirby described these injuries as scabs, or eshar. He agreed that this was necrotic tissue, and eventually agreed that if the epithelium was destroyed, a scab having been formed, it would be impossible to undertake a biopsy of the Epithelium.
Dr Kirby agreed that the burning away of layers of skin by the application of cansema made it impossible to investigate the histology of the lesions by biopsy. He agreed that a biopsy could be undertaken of the skin after the scab dropped off, and accepted that there would be a delay in administering that biopsy. He agreed that if in fact the lesions were skin cancers, (such as basal cell carcinoma, squamous cell carcinoma and melanoma) that that delay in biopsy and diagnosis would "possibly" have consequences for the patient's outcome.
Secondly, the Tribunal does not consider that Dr Kirby now accepts, or ever accepted, that he crossed a professional boundary by treating the Cansema group patients in the manner that he did: that is applying the Cansema, taking photographs after its application, and giving the group members advice. The Tribunal considers Dr Kirby did blur the boundaries between professional and personal capacities and as at the time of the hearing believed that what he had done in relation to the Cansema group was entirely in a personal capacity and nothing to do with his practice as a dental health professional. Indeed, Dr Kirby told the Tribunal that, in his mind, when he applied Cansema to the group members, he did not consider that he was practising dentistry or providing a health service. Dr Kirby confirmed in cross examination on 7 October 2016 that that remained his view. His counsel pointed to a later exchange to support a submission that this was no longer the case. However, the Tribunal rejects that submission, and finds that the passage is equivocal: MR AGIUS: At the time you are associated with cansema and applying it to people, was your view as to whether it was conduct that was permissible by you given that you practice as a dentist in this very same community? What was your view about the correctness or otherwise of that conduct? A. I thought it was acceptable. Q What is your view of it now? A My view is that irrespective of what I think is right or wrong, that it was unacceptable and - it's unacceptable and I won't be going there again.
Thirdly, Dr Kirby repeatedly gave answers to questions of Ms Horvath, and even to the Tribunal, which were simply not credible, including that: 1. He was not monitoring Patient B's treatment, in circumstances where he took photos of Patient B's progress following administration of Cansema, and made detailed notes; 2. Everything that occurred did not involve the treatment or advice in relation to physical health, rather, it occurred entirely within his personal life, and had nothing to do with his professional life; 3. Despite the very detailed notes he took in relation to members of the Cansema group, he was not treating those people; 4. His advice to one patient to take analgesia about possible pain associated with the application of Cansema was given as a friend, and not in a capacity as a health professional.
Fourthly, Dr Kirby admitted that he had prescribed a variety of various drugs for non-dental related purposes. This included the antibiotic Tinizadole for Patient B's "gut ache"; Lofenoxal for diarrhoea; Rulide for Patient B's shingles; and Schereriproct for haemorrhoids.
Fifthly, Dr Boland asked Dr Kirby a series of questions relating to his prescribing of Ativan tablets. At the hearing of the Council on 12 February 2016 Ms MacDougal had asked Dr Kirby whether it was normal in the practice of dentistry to prescribe the use of 50 Ativan tablets. His response was that "the simple answer is yes". He went on to explain that there had been occasions, "many occasions", when a pharmacist refused to break up a packet and thus forced the patient to purchase by a full packet of 30, even though Dr Kirby's direction may have only been for two tablets. Dr Boland suggested to Dr Kirby that the evidence before the Council, namely the report of Mr Aleksandar Gavrilovic, Senior Pharmaceutical Officer of the Pharmacology Regulatory Unit of 8 March 2016, suggested otherwise. Dr Boland discussed with Dr Kirby that report and how it showed that eight patients were dispensed two tablets, while other patients received 50. Patient B was dispensed 50 tablets on each of the three occasions he was prescribed Ativan from one particular pharmacy. There was a detailed discussion about what Dr Kirby actually wrote on his prescriptions, and whether those instructions were ambiguous, as was found by Mr Gavrilovic. There was further discussion about why Patient B's prescriptions were described as "private", where other patients' prescriptions were described as "dental". Dr Kirby could give no explanation why this was so.
Sixthly, Dr Kirby demonstrated, at best, a lack of insight generally, for instance, telling the Tribunal that he "wasn't in a position of authority" when he acted the way he administered the Cansema to group members in his rooms, and agreeing that as a dentist he could treat any condition so long as it had some connection with the mouth ("technically yes, practically no").
Finally, Dr Kirby's evidence that he failed to use gloves while he applied the Cansema to the members of the group and that he had no concerns about infection was, to say the least, a surprising statement for a practising dentist to make.

Summary of Dr Kirby's conduct

The Tribunal was given very little assistance by Dr Kirby to understand the factual matters he was asserting in more than 1,200 pages of materials. The Tribunal is indebted to the respondent's Counsel for their very detailed and comprehensive submissions which are cross-referenced to the evidence before the Tribunal. Having considered all the evidence before it, the Tribunal relevantly finds as follows: 1. In the period 2009 to 2015, Dr Kirby treated up to 12 people (the Cansema group) in his surgery for various forms of skin and other cancers with Cansema, or as Dr Kirby repeatedly reminded the Tribunal, "a Cansema-like substance" (Cansema), a substance not approved by the Therapeutic Goods Administration (TGA); 2. Dr Kirby's treatment of various members of the Cansema group included: 1. applying paste or liquid Cansema to individuals in his dental surgery and thereafter applying bandages, cleaning the wound with iodine washes/scrubs and replacing bandages as necessary; 2. using needles to puncture the skin of at least one patient; 3. monitoring the progress of the Cansema treatments, including through either taking photos, being provided with photos, or asking group members to take photos and tell him which area reacted the most to the Cansema. The Tribunal rejects Dr Kirby's claims that the photos taken by him were not for the purpose of monitoring reactions to the Cansema; 4. providing information and reassurance to members of the Cansema group, including telling one group member who had seen a skin cancer specialist, that that the specialist was wrong to describe what was on the back of her neck as a sebaceous cyst. The Tribunal rejects Dr Kirby's evidence both to the Council and the Tribunal that he had never provided such reassurance to members of the Cansema group; 5. making recommendations to members of the group concerning the frequency, type, and location of Cansema treatments and pain relief strategies, including through via Nurofen Plus and Panadeine Forte; 1. In providing this treatment, Dr Kirby did not: 1. take a medical history from anyone in the group; 2. see any diagnosis of pathology of the lesions, including Patient B's allegedly desmoplastic neoplasm; 3. know what was in the Cansema paste or liquid when he applied it to individual people, or know how corrosive the Cansema would be on any particular occasion; 1. Dr Kirby did not have any professional knowledge about the changes that occur or could occur in the various types of skin cancer lesions and he knew that: 1. the TGA had published information to the effect that it was not aware of any credible scientific evidence that Cansema could cure or treat cancer; 2. the TGA said Cansema essentially burnt off layers of skin and surrounding normal tissue and could destroy large parts of the skin and underlying tissue leaving significant scarring; 3. the sorts of reactions to Cansema were similar to that seen in the photos in evidence; 4. members of the group experienced pain and swelling following the application of Cansema; and 5. the application of Cansema had the potential to delay the accurate diagnosis of a person's skin cancer by a qualified health professional.

Conclusion in relation to the First Decision

Dr Kirby submits that the decision of suspension was an excessive measure which ought never to have been imposed, and that any perceived risk to the health and safety of the public could and should have been adequately met by the imposition of conditions.
The Council submits that, contrary to Dr Kirby's submissions, that action by the Council under s 150 was entirely appropriate in the circumstances which existed on 18 December 2015, and in particular for the following reasons: 1. The Council had information to the effect that Dr Kirby had allegedly treated Patient A with Cansema for a basal cell carcinoma and had also treated a number of other people with Cansema. The Council was also led to understand that Cansema was a non-TGA approved substance with no evidence as to its effectiveness, which could cause serious damage to a person's skin. 2. The Council had before it [Patient B]'s file which, on its face, appeared to be a clinical file and appeared to contain reference to an excessive prescribing of scheduled medications beyond what would be needed for the practice of dentistry, in circumstances where Dr Kirby refused to answer any questions about the document. 3. The Council had the report of Dr White which set out numerous areas in which Dr Kirby's dental practice was not compliant with infection control protocols.
Although the Council had received a submission from Dr Kirby in response to Dr White's report, these were matters that the Council had not questioned Dr Kirby about on 15 December 2015. Accordingly, the Council remained concerned about whether Dr Kirby had in fact taken proper steps to ensure that all infection control practices and procedures were compliant.
The Council submits that no error is identified in the Council's First Decision, and that it was entirely appropriate in the circumstances which existed on 18 December 2015 for the Council to suspend Dr Kirby for the protection of the health and/or safety of the public.
Dr Kirby submits, in relation to the First Decision, there was no basis on which the Council could be satisfied that it was in the public interest to suspend Dr Kirby's registration. Dr Kirby says that the Council's letter of 18 December 2015 identified two matters which justified the suspension. The first was the continuation of his practice of applying Cansema-like products. He submits that there was no reason why the matter could not be dealt with in terms of the undertakings which had been proffered the day before, or which were subsequently proffered on 4 January 2016 and on 3 February 2016.
The second issue was infection control. Dr Kirby submits that the Council did not identify what infection control practices remained non-compliant. Even if the Council did not have to determine the conflict between him and Dr White, it could not reach the requisite level of satisfaction without identifying areas of non-compliance and the relationship between those areas and the safety of the public.
It is somewhat artificial to be considering an appeal in relation to the First Decision, in circumstances where, as discussed with Dr Kirby's senior counsel on the first day of the hearing, that decision was now spent, the order suspending Dr Kirby's registration as a dentist being "lifted" by the making of the Second Decision which imposed conditions on Dr Kirby's registration. Nevertheless, the Tribunal considers that, in reconsidering the matter in light of the additional evidence, particularly the evidence of Dr Kirby's given in cross-examination, the Tribunal considers that the Council was entirely justified in suspending Dr Kirby's registration.
The Tribunal considers that in light of the Kirby's lack of cooperation with the Council, and refusal to answer many of its questions, and his non-attendance on 18 December 2015, the Council had no alternative in view of its obligations to protect the public. As it noted during the hearing on 18 December 2016, the Council was left with no explanation as to the matters in identified during the course of the hearing, and it was concerned the members of the public could be led into believing that Dr Kirby had the necessary qualifications to treat ailments not related to the practice of dentistry, in circumstances when Dr Kirby demonstrated no understanding of this position.
For the reasons given above, the appeal in relation to the First Decision should be dismissed.

Conclusion in relation to the Second Decision

Dr Kirby submits that the present conditions on his registration should be terminated. He submits that they cannot be and are not in any way related to the issue of infection control; that they are not related to Cansema which of itself is a clear recognition on the Council he would stop practising dentistry when he applied Cansema to the small group of people who were involved in that activity. He submits that his "position is and always has been that he was not practising dentistry at any time when he applied a Cansema like substance to the small group of people who met to use and discuss Cansema". He describes the conditions as "completely misconceived", and going well beyond any reasonable perception of to the need to address any risk to public health and safety. He submits that it is significant that while the Council recognised there was no issue about his competence as a dentist and that the use of Cansema had not occurred while he was practising dentistry, nonetheless the conditions imposed severely restricted his ability to practice dentistry effectively.
Dr Kirby submits that the overall effect of the conditions is to limit his practice dentistry to minor procedures only, effectively to remove his ability to carry out major dental work, to perform any kind of dental implant, maintain a hospital list or to perform any type of dentistry under general anaesthetic. He submits that he is unable to maintain or build his practice, prescribe antibiotics necessary to deal with infections such as abscesses, overall prevents him from practising dentistry effectively. Dr Kirby notes the conditions also remove his right to practice alone, for which he submits there can be no rationale. He submits that the conditions are "far and away excessive and unnecessary" to deal with any issue identified in relation to his practice of dentistry.
In summary, Dr Kirby submits that there is no logical nexus between the matters relied upon by the Council and the bulk of the conditions imposed.
On the other hand, the Council submits that it acted lawfully and without error on 12 February 2016 in terminating Dr Kirby's suspension and imposing conditions on his ability to practice. The three significant conditions imposed by the Council were: 1. Restricting the procedures that Dr Kirby was allowed to perform to that of a general dental practice which, according to his evidence on 12 February 2016, was his usual work; 2. Prohibiting Dr Kirby from prescribing most drugs; and 3. Requiring that Dr Kirby not work in sole practice.
The Council submits that while Dr Kirby complains that the conditions prevent him from doing implant work, Dr Kirby did not tell the Council on 12 February 2016 that that was part of his practice. The Council submits that, contrary to Dr Kirby's submissions, the action taken by the Council in the s 150A review was entirely appropriate in the circumstances which existed on 12 February 2016 for the following reasons: 1. First, the content of the Patient B's z file and Patient B's clinical file, together with the evidence from each of Patient B and Dr Kirby suggested that Dr Kirby had a belief that he was entitled to treat patients' ailments which were well beyond the usual practice of dentistry. Those ailments included shingles which manifested on the back/chest/sternum; haemorrhoids; dehydration; constipation; food poisoning; and anxiety. The Council submits that these are serious allegations. If this is correct, the Council submits there is a risk to the public such that it was appropriate to impose a condition limiting the procedures that Dr Kirby was authorised to perform; 2. Secondly, Patient B's z file, together with evidence from Patient B and Dr Kirby suggested that, over a number of years Dr Kirby had been providing care or healthcare services to members of the Cansema group (some of whom may have been dental patients) in his dental surgery. This suggested that Dr Kirby may have failed to maintain professional boundaries with his patients. The Council submits that these are serious allegations which, if correct, establish a risk to the public such that it was appropriate to impose a condition limiting the procedures that Dr Kirby was authorized to perform. 3. Third, the content of the Patient B's z file, Patient B's clinical file, together with the evidence from each of Patient B and Dr Kirby suggests that: 1. Dr Kirby had been prescribing medications, which were not 'for dental treatment only'; 2. Dr Kirby believed that all of the medications he had prescribed were appropriate and within the scope of his dental practice; and 3. Dr Kirby did not appreciate that there may have been a danger associated with his conduct. 1. Fourthly, Dr Kirby's evidence and Patient B's evidence suggested that, in Dr Kirby's interactions with Patient B and with the Cansema group: 1. his clinical judgment may have been impaired by his personal relationships; and 2. he may have failed to maintain a professional boundary between his dental practice and personal life.
The Council submits that the fact that Dr Kirby's clinical skills were not in issue does not equate to an absence of concerns about his practice of dentistry.
The Tribunal accepts that the conditions imposed by the Council do not correlate neatly with the risks it identified in the Second Decision, especially in light of the Council's view that Dr Kirby's registration did not require suspension, and the Council's finding that there was no evidence before it that Dr Kirby lacked competence in his practice. However, we have set out above our findings in these reasons, and our views about Dr Kirby's evidence given in cross-examination. We hold grave concerns about Dr Kirby's insight and practices. Had the Council submitted that, in light Dr Kirby's cross-examination, it was appropriate to reimpose suspension of Dr Kirby's registration, the Tribunal would have given very serious consideration to taking this course. This was because of the unsatisfactory evidence given by Dr Kirby during the course of his cross-examination.
The Tribunal considers, in light of the entirety of the evidence before it, that the Second Decision imposing conditions on Dr Kirby's registration should be confirmed and the appeal dismissed.

Costs

As a general rule, costs of proceedings before the Tribunal should follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [45].
Dr Kirby has been unsuccessful in obtaining relief against the Council. In the circumstances, the Tribunal proposes that he should pay the Council's costs of the proceedings. Both parties have leave to file submissions on costs within 14 days, and each may reply within a further 14 days.

Orders

The Tribunal orders that the appeals be dismissed. 1620045 + 1620110 (Attachment) (82.9 KB, pdf)

Endnotes

Exhibit B 48, a publication of the Department of Health and Therapeutic Goods Administration (TGA) of 9 December 2013, Black Salve, Red Salve and Cansema, states that each of Black Salve, Red Salve and Cansema is a product containing an active ingredient called sanguinarine, which comes from Bloodroot (sanguinaria canadensis). These products have been sold in Australia as an alternative treatment for cancer including skin cancer. The TGA is advising consumers against purchasing or using Black Salve, Red Salve and Cansema products. The TGA is not aware of any credible, scientific evidence that these products can be used to diagnose cancers. In fact, the evidence shows they will cause skin irritation regardless of whether any malignancies present. These products are corrosive salves. They essentially burn off layers of the skin and surrounding normal tissue. They can destroy large parts of the skin and underlying tissue, and leave significant scarring.
Namely Associate Professor Bill O'Reilly (President), Dr Penny Burns (Deputy President), Drs C Biscoe, A Burges, F S Fryer, K Lobo, J Pearman, J Wallace, Ms R MacDougal and Messrs M Miceli, D Owen and S McGlynn
Also referred to as Associate Professor O'Reilly
The Tribunal notes that the name of the patient was recorded as "[first name] z[family name]". For convenience the Tribunal will refer to this patient as Patient B and the record or file as "Patient B's z file", or "the z file".
The Tribunal notes that the varying references to cansema and cancema are as they appear in the original. The Tribunal will refer to the paste as Cansema.
The eight Council members were Dr O'Reilly, Drs Burges, Owen, Burns, Fryer, Briscoe, Ms MacDougal and Ms Wallace.
Dr Kirby's grounds of appeal assert that Dr Fryer participated in the hearing of the Council on 11 December 2015. The transcript of those proceedings does not record Dr Fryer as being present, or asking any questions. However, the Council's submissions accept (par 32) that Dr Fryer did attend the hearing on 11 December 2015.
The particulars of the claimed apprehended bias were also set out over pp 4 to 8 of Dr Kirby's submissions of 18 October 2015. These submissions appear to have been prepared by Dr Kirby himself (as they are signed by him) and take a different form to the particulars appearing in Mr Agius' email to Mr Horvath of 4 October 2016; they are more discursive, and in part comprise submissions. As Mr Agius' email was tendered by the Council with no objection being made by Dr Kirby, we consider that the contents of that email comprise the particulars on which Dr Kirby wishes to rely.
Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546
Stollery v. Greyhound Racing Control Board [1972] HCA 53; (1972) 128 CLR 509
Builder's Builders' Reg. Board of Qld v Rauber (1983) 57 ALJR 376; 47 ALR 55
Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70.
Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd [1994] HCA 66; (1994) 68 ALJR 179
Cl 16 of Sch 5C National Law 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: 28 April 2017

Teaching Service Act 1970(NSW)

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Judgment (22 paragraphs)

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Cases Cited (50)

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