Kirby v Health Care Complaints Commission [2021] NSWCA 138 | Case summary

Court of Appeal (NSW)|2021-06-01|Before: Gleeson JA, White JA

Introduction These proceedings are concerned with the operation of Div 5, Div 6 and Div 6A of the Health Care Complaints Act 1993 (NSW) (the Complaints Act) in relation to the applicant, Dr David Kirby, who is a dentist. Dr Kirby is registered as a health practitioner under the Health Practitioner Regulation National Law (NSW) (the National Law). On 4 October 2016, the respondent, the Health Care Complaints Commission (the Commission), made an order whereby Dr Kirby was permanently prohibited from applying or administering "black salve, red salve, cansema or cansema-like substances to any person, whether at his dental practice premises or elsewhere" (the Prohibition Order). Dr Kirby contends that the Prohibition Order was invalid because the Commission failed to consult with the Dental Council of New South Wales (the Dental Council) before deciding to take the action of making the Prohibition Order.

Background

On 18 December 2015, the Dental Council wrote to Dr Kirby saying that, on 15 December 2015, it had decided to take action under the National Law to suspend his registration effective from 18 December 2015. A summary of the reasons for that decision indicated that, when asked by delegates of the Dental Council in what circumstances Dr Kirby used "cansema-like" substances by topical application to the skin of individuals, Dr Kirby gave answers that left the delegates with grave concerns about the use of "this unregulated substance", as a result of which the delegates had formed the view that the continuation of that practice was of grave risk to the public. On 4 January 2016, Dr Kirby's solicitors wrote to the Dental Council providing information concerning Dr Kirby's association with "cansema-like" substances. The letter said that Dr Kirby admitted that he had applied a similar substance to persons who had requested him to do so but that he did so, not in his capacity as a dental practitioner, but in his private and personal capacity.
On 9 March 2016, the Commission wrote to Dr Kirby saying that the Commission had used its "own motion powers" to initiate a complaint against him on the grounds that his care and treatment of patients with "cansema" or "cansema-like" substances raised a significant issue of public health or safety or raised a significant question that was likely to affect the clinical management or care of a patient. The letter referred to the possibility that Dr Kirby's conduct may be in breach of "the Code of Conduct for Unregistered Practitioners". The code of conduct referred to in the letter is a code of conduct for unregistered health practitioners prescribed by regulations made under s 100 of the Public Health Act 2010 (NSW) (the Code of Conduct). The letter of 9 March 2016 said that the Commission would be investigating whether Dr Kirby performed treatment on patients without proper training, experience and qualifications and whether the conduct was in breach of the Code of Conduct. The letter said that the Commission had several options, including making a prohibition order.
The Code of Conduct applies to the provision of health services by:

health practitioners who are not subject to the scheme for registration under the National Law (including deregistered health practitioners), and
health practitioners who are registered under the National Law for the provision of health services and who provide health services that are unrelated to their registration. The Code of Conduct provides that health practitioners may be subject to other requirements relating to the provision of health services to which the Code of Conduct applies.

On 17 March 2016, Dr Kirby wrote to the Commission requesting copies of any complaint by the Dental Council referred to the Commission and any documents passing between anyone and the Dental Council and the Commission in relation to any such complaint. Dr Kirby also sought further information in relation to the "cansema-like substance complaint". The Commission replied on the same day referring to its letter of 9 March 2016 and indicating that it was not required to provide and would not be providing a copy of the requested documentation.
On 24 August 2016, the Commission wrote to Dr Kirby saying that the Commission was at the end of the investigation of the complaint undertaken on its own motion. The letter said that the evidence indicated that Dr Kirby had breached the Code of Conduct by providing health services in an unsafe and unethical manner and that he posed a risk to the health or safety of members of the public. The letter said that the Commission proposed to take action under s 41A of the Complaints Act and that the proposed action and the substance of its grounds were set out in the draft statement of decision enclosed. The draft statement of decision proposed that an order be made in the terms of the Prohibition Order. On 28 September 2016, Dr Kirby's solicitors made submissions in response to the Commission's invitation to make submissions on the draft statement of decision.
On 4 October 2016, the Commission wrote to Dr Kirby again saying that the Commission had finalised its investigation and enclosed its statement of decision. The letter said that the Commissioner had decided to make the Prohibition Order.

Legislative Framework

Under s 7 of the Complaints Act, a complaint may be made concerning the professional conduct of a health practitioner, including any alleged breach of a code of conduct prescribed under s 100 of the Public Health Act 2010 (NSW). A health practitioner is a natural person who provides a health service, whether or not the person is registered under the National Law. A complaint may also be made concerning a health service provider. A health service provider is a person who provides a health service, which includes dental services. A complaint may be made against a health service provider even though, at the time the complaint is made, the health service provider is not qualified or entitled to provide the health service concerned.
Under s 12 of the Complaints Act, before determining whether to investigate a complaint, to refer the complaint for conciliation, to deal with the complaint under Div 9 of the Complaints Act or to discontinue dealing with the complaint, the Commission must consult with "the appropriate professional council (if any)". The term professional council means, in relation to a health practitioner in a health profession for which a council is established under s 41B of the National Law, the council for that health profession. The Dental Council is the council for the dental profession. Under s 13 of the Complaints Act, if either the Commission or the appropriate professional council is of the opinion that a complaint, or any part of a complaint, should be investigated, it must be investigated.
Under s 29 of the Complaints Act, the investigation of a complaint by the Commission is for the purpose of obtaining information concerning the matter complained of and to determine what action should be taken in respect of the complaint. Section 38 provides that the Commission must notify "the appropriate professional council (if any)" of the findings of an investigation. If the Commission is required to consult with the professional council under s 39(2), the notification may be given at the time of consultation.
Section 39(1) of the Complaints Act provides that, at the end of the investigation of a complaint against a health practitioner, the Commission must do one or more of the following:

refer the complaint to the Director of Proceedings;
refer the complaint to "the appropriate professional council (if any)" for consideration of the taking of action under the National Law;
make comments to the health practitioner on the matter the subject of the complaint;
terminate the matter;
refer the matter the subject of the complaint to the Director of Public Prosecutions; or
take action under s 41A. However, under s 39(2), the Commission must consult with "the appropriate professional council" before deciding what action to take.

Section 40(1) of the Complaints Act relevantly provides that, if, at the end of the investigation of a complaint against a health practitioner, the Commission proposes to take action under s 41A, it must first inform the health practitioner of the substance of the grounds of the proposed action and give the health practitioner an opportunity to make submissions. Section 41 relevantly provides that, after the Commission has complied with s 39 and any requirement under s 40, it must notify the parties to the complaint and "the appropriate professional council" of the results of the investigation, the action taken under s 39 and the reasons for taking that action. Under s 41(2), the Commission may, at its discretion, also provide the same information to an appropriate professional or similar association, if there is no "appropriate professional council".
Division 6A of Pt 2 of the Complaints Act, which consists of ss 41AA, 41A, 41B, 41C, 41D and 41E, deals with action against "non-registered health practitioners". Section 41AA relevantly provides that the Commission may, during any investigation of a complaint against a non-registered health practitioner, make an interim prohibition order in respect of the non-registered health practitioner. The Commission may make an interim prohibition order only if:

it has reasonable belief that the health practitioner has breached the Code of Conduct; and
it is of the opinion that the health practitioner poses a serious risk to the health or safety of members of the public and the making of an interim prohibition order is necessary to protect the health or safety of members of the public.

Under s 41A(1), the Commission may take action under s 41A if:

it has complied with Div 6 with respect to an investigation of a complaint against a health practitioner;
it finds that the health practitioner has breached the Code of Conduct or has been convicted of a relevant offence; and
it is of the opinion that the health practitioner poses a risk to the health or safety of members of the public. Under s 41A(2), the action that the Commission may take under s 41A includes making an order (referred to as a prohibition order) that does one or more of the following:
prohibits the health practitioner from providing health services or specified health services; and
places such conditions as the Commission thinks appropriate on the provision of health services or specified health services by the health practitioner. Under s 41A(3), if the Commission is aware that a person in respect of whom it is proposing to make a prohibition order is a registered health practitioner, the Commission must, before making a prohibition order, notify "the relevant professional council" of the proposed order and give "that council" an opportunity to make a submission.

The Question in Issue

It is common ground that, prior to making the Prohibition Order on 4 October 2016, the Commission did not consult with the Dental Council or any other professional council. Dr Kirby contends that, in those circumstances, the Commission failed to comply with s 39(2) and, therefore, did not have power to take action under s 41A. That question turns on whether or not, in the circumstances of the present case, the Dental Council was "the appropriate professional council" for the purpose of s 39(2).
The Commission contends that, because the complaint investigated by it concerned conduct by Dr Kirby that was not in his capacity as a provider of dental services, there was no "appropriate professional council". That contention is based on the fact that Dr Kirby maintained that his actions in relation to "cansema" or "cansema-like substances" were undertaken by him in his private and personal capacity and not in his capacity as a dental practitioner. The Commission says, therefore, that there was no "appropriate professional council" to be consulted for the purposes of s 39(2).
The primary judge accepted the Commission's contention in that regard. Her Honour concluded that the relevant provisions contemplate circumstances in which registered health practitioners, such as Dr Kirby, are investigated for providing health services outside their field of registration and that, in those circumstances there is no "appropriate professional council". Accordingly, there could not have been a failure to consult under s 39(2) of the Complaints Act. Rather, the role of the Dental Council would arise later, at the stage of notification under s 41A(3). Her Honour found that the Commission complied with that requirement on 24 August 2016, when it wrote to the Dental Council and enclosed a copy of the draft statement of decision. Dr Kirby contends that her Honour erred in that conclusion.
I have had the advantage of reading in draft form the reasons of White JA for concluding that there was a requirement to consult with the Dental Council but that there was no realistic possibility of the Dental Council proposing a different course of conduct than that proposed by the Commission, had it been consulted at the earliest stage. I agree with his Honour's conclusions in that regard. However, I have reached a different conclusion as to the construction of the Complaints Act.
It is significant that the language of s 41A differs from that of s 39 in requiring notification of "the relevant professional council" where the Commission is aware that a person in respect of whom it is proposing to make a prohibition order is a registered health practitioner. However, the references to "the appropriate professional council (if any)" indicate that the legislature contemplated that there may not be an appropriate professional council in a particular case. I consider that the preferable construction of s 39(2) is that the reference to "the appropriate professional council" should be understood as a reference to the appropriate professional council, if any. In circumstances where, as Dr Kirby contends, the conduct in question was not conduct in his capacity as a registered health practitioner, there was no appropriate professional council. In particular, the Dental Council was not the appropriate council. It follows that there was no failure on the part of the Commission to comply with the provisions of s 39.
Nevertheless, I also agree with White JA that this is an appropriate case for the grant of leave to appeal but that the appeal should be dismissed with costs.

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: 09 July 2021

Public Health Regulation 2012(NSW)

(Director of Public Prosecutions Act 1986(NSW)

Solicitors: Graham Billing & Co (Appellant) Health Care Complaints Commission (Defendant) File Number(s): 2020/255744 Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Common Law Citation: [2020] NSWSC 1133 Date of Decision: 26 August 2020 Before: Harrison AsJ File Number(s): 2019/101278

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, Dr Kirby, is a dentist. On 6 August 2015, the respondent, the Health Care Complaints Commission, received a complaint from another dentist to the effect that the applicant had administered a substance called "cansema" to a woman as a means of treating a cancer of the nose. Cansema is not approved by the Therapeutic Goods Administration. The respondent referred the matter to the Dental Council, which then caused an inspection of the applicant's practice to be conducted, the results of which suggested that the applicant had administered cansema to other people on other occasions. The applicant submitted to the Council that because the conduct the subject of the complaint occurred outside the practice of dentistry, the Council did not have power under the Health Practitioner Regulation National Law 2009 (NSW) ('National Law') to deal with it. The Council referred the matter to the respondent. In February 2016, the respondent used its own motion powers pursuant to s 8(2) of the Health Care Complaints Act 1993 (NSW) ('the HCC Act') to initiate a complaint against the applicant in respect of his use of cansema or cansema-like substances. The respondent proceeded to investigate the complaint under Div 6 of the HCC Act. On 4 October 2016, the respondent made a prohibition order under s 41A(2)(a) of the HCC Act prohibiting the applicant "from applying or administering black salve, red salve, cansema or cansema-like substances to any person". On 1 April 2019, the applicant filed a summons seeking a declaration that the decision of 4 October 2016 was void, an order preventing the HCCC taking any further steps in relation to the making of a prohibition order, and, in the alternative, an order quashing the decision of 4 October 2016. The applicant contended that the respondent failed to comply with what he says is a precondition to the making of a prohibition order, being the requirement in s 39B of the HCC Act that "[t]he Commission must consult with the appropriate professional council before deciding what action to take." The respondent admitted that it did not consult with a professional council before making the prohibition order. It contended, however, that there was no appropriate professional council because the complaint concerned an alleged breach of the "Code of Conduct for non-registered Health Practitioners", which applies both to unregistered health practitioners and to registered health practitioners who provide health services unrelated to their registration. That is, because the alleged breach did not concern dentistry, the Dental Council was not an appropriate council. The primary judge accepted this submission. At issue on appeal was whether the primary judge erred in finding that there was no appropriate professional council, and, if so, whether the respondent's failure to consult the appropriate professional council rendered the prohibition order invalid. The Court held (per White JA, Gleeson JA agreeing and Emmett AJA agreeing in the result): In respect of whether there was an appropriate medical council for the purposes of s 39B(2) of the HCC Act: Per White JA (Gleeson JA agreeing at [1]): Because the Dental Council, which originally referred the matter to the respondent, may have considered that a result more or less serious than a prohibition order was warranted, it was an appropriate medical council: at [30]-[31]. Per Emmett AJA: The reference in s 39B(2) to "the appropriate professional council (if any)" indicates that the legislature contemplated that there may not be an appropriate professional council. In circumstances where the conduct in question was not conduct in Dr Kirby's capacity as a registered health practitioner, there was no appropriate professional council: at [82]. In respect of whether the respondent's failure to consult rendered the prohibition order invalid: Per White JA (Gleeson JA agreeing at [1] and Emmett AJA agreeing at [81]): Given that the opinion of the Dental Council was that the applicant posed a risk to the safety of the public, and given that the Dental Council did not respond to the notice given by the respondent after making the prohibition order, there is no reason to think that the Dental Council would have opposed the action proposed: at [56]-[59]. MZAPC v Minister for Immigration and Border Protection [2021] HCA 17, applied.

Kirby v Health Care Complaints Commission

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