Liu v Chinese Medicine Council of NSW

Relevant Law

1. The National Law provides at s 161B: An appeal under this Division does not operate to stay the effect of the decision being appealed against unless the Tribunal otherwise orders.
2. Section 165L(2) of the National Law provides that: The Tribunal may, in respect of an appeal under section 159B, make an order staying the decision of the Council appealed against until the appeal has been disposed of.
3. The Civil and Administrative Tribunal Act 2013 (NSW) has broader powers concerning stay orders in s 43(3): The Tribunal may make such orders (whether with or without conditions) staying or otherwise affecting the operation of a decision to which a pending general application or appeal relates as it considers appropriate to secure the effectiveness of the determination of the application or appeal.
4. Part 4 of the CAT Act, including s 43(3), is expressly made 'subject to enabling legislation', which includes the National Law.
5. In Medical Council of NSW v Lee [2017] NSWCA 282 the Court of Appeal found that, in an appeal under the National Law, the CAT power to grant a stay is limited to appeals on points of law by virtue of s165L(2) of the National Law. In this matter there is both an appeal on points of law and a substantive appeal and so the power is enlivened.
6. The question for the Tribunal is whether a stay application is appropriate to secure the effectiveness of the determination of the application or appeal. The power is a discretionary one.
7. There is a wealth of general guidance on principles to be considered in exercising a stay power: Commissioner of Taxation v Myer Emporium Ltd [No.1] [1986] HCA 13; Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Ltd [1986] HCA 84. In the context of this Tribunal, Wright J on behalf of the Appeal Panel summarised such principles in Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 as including: 1. The onus is on an applicant for a stay to make out a case that it is appropriate to make such an order. 2. An order staying the operation of a decision or orders will generally be appropriate where such an order is reasonably necessary to secure the effectiveness of the appeal. 3. The Tribunal may take into account the strength or otherwise of the case of the party seeking the stay. 4. The Tribunal's power to grant a stay includes a power to make such an order subject to such conditions as the Tribunal specifies. 5. In exercising the discretion the Tribunal will weigh the balance of convenience and the competing rights of the parties and may impose appropriate conditions so as to achieve a result that is fair to all parties. 6. The overriding principle in an application for a stay is to ask what the interests of justice require.
8. These general principles must be considered and applied within the specific context of the National Law, in particular the object and guiding principle expressed in s 3(2)(a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered, and the paramount consideration of the protection of the health and safety of the public in s 3A: Kesserwani v Chiropractic Council of NSW [2015] NSWCATOD 77.
9. The Tribunal is also mindful of the specific regulatory and decision-making framework of the National Law. Unlike the traditional court structure, immediate action decision by Councils are flexible and responsive in that they can be revised and removed by Councils through s 150A and s 150C proceedings. Councils are profession-specific and so such decision-making is made with access to the specific disciplinary knowledge and context of that health profession. The order of conditions or operation of conditions attached to a stay within the context of the National Law are also unique to this jurisdiction, both by virtue of the paramount consideration of the protection of the health and safety of the public and through the operation of the National Law across state borders through broadly uniform state statutes applied by state Tribunals and Courts.
10. In Taylor v Medical Board of Australia [2018] NSWCATOD 50, ADJ Boland considered as part of balancing the competing rights or convenience of the parties, in a stay application of an appeal under a different provision of the National Law the question: 'Could the health and safety of the public be adversely affected if the stay [order] is granted?'

Evidence and Submissions

1. Both parties sought to introduce voluminous material and each objected to the other's efforts to rely on untested evidence and to adduce additional evidence in response to each other's submissions. At an interlocutory hearing such as this one there is little or no ability to test evidence. All of the material was admitted, and oral submissions were heard on relevance and weight, bearing in mind that this was not a fact finding exercise.
2. The applicant argued that a stay was necessary to ensure the effectiveness of the appeal. The applicant contended that he had a strong case that he had been denied procedural fairness and would succeed on appeal, but that this victory would be 'pyrrhic' by the time the appeal was decided. This was said to be because the of the serious adverse impact of the suspension on, 1. The health and wellbeing of Dr Liu's patients who were unable to access his treatment; 2. The viability his four clinics which have lost patients and may have to close down or fire staff; 3. The depletion of Dr Liu's income, and 4. The irreparable reputational harm to Dr Liu.
3. In support of these arguments, the applicant tendered a statement and supplementary statement from Dr Liu dated 7 December and 17 December, respectively, a statement from a practice manager at one of the clinics and financial records relating to that clinic, a statement from a patient of Dr Liu, and a statement from Dr Liu's solicitor.
4. It was applicant's case that Dr Liu is 'the face' of his four clinics; it is his reputation and expertise which attracts patients, and he is the only practitioner in the clinics who prescribes and tailors the 101 Wellbeing Program.
5. It was the applicant's submission that Chinese Medicine is not really comparable with other health practices; the 'transferability' of Western medical services means that a suspension decision would have a less severe impact upon the patients and practice of a health practitioner outside Chinese Medicine.
6. The applicant detailed his contentions on appeal on points of law as including both procedural fairness claims and an argument about lack of reasons.
7. The applicant offered undertakings about his practice to address the concerns raised by the Council hearing if the suspension were stayed pending appeal. These included not prescribing the 101 Wellbeing Program to patients with a current or previous heart condition or serious health condition unless 'such treatment is approved in writing by a Western-trained health practitioner', requesting that new patients with previous or current 'significant health issues' consult their GP or specialist for advice on possible risks of undergoing the 101 Wellbeing Program and allowing time for such consultation before commencing the Program and adding a check of the patient's blood oxygen level, heart rate and blood pressure before recommending the 101 Wellbeing Program.
8. There was some discussion about whether such undertakings could be imposed as a condition of the stay order, in which case they would be limited in operation to NSW, or as conditions under s 165L(1) of the National Law, in which case they would be nationwide and made public on the APHRA register. In either case the respondent argued that such conditions would be insufficient to address the concerns identified by the Council in its s 150 decision.
9. Mr Martin noted that in making the s 150 order the Council was obliged under the current National Law to consider whether immediate action was 'appropriate' and not whether it was 'necessary'. This was, he submitted, a lower threshold for action than previously, and should be contemplated as reflecting the high priority accorded to public safety in the legislative framework of the National Law when considering disturbing such order on an interlocutory basis.
10. Council placed significant emphasis on the complaint history concerning the practitioner's administration of the 101 Wellbeing Program and argued that both the public safety and public interest considerations under the National Law justified a refusal of the stay.
11. Mr Martin noted that the Council in the s 150 proceeding was obliged to consider all previous complaints by virtue of s 410 of the National Law, and went further to suggest that the Tribunal in this application was similarly obliged as it was standing in the shoes of the Council.
12. The Council argued that in interpreting the s 150 standard, 'otherwise in the public interest' extended to a public expectation of regulatory action in the context of what it characterised as a lengthy complaint history.
13. The Council also submitted that the reluctance of Dr Liu to adapt his business and practice to accommodate the suspension should not weigh in his favour in seeking a stay. All health practitioners have time away from their practice at some stage, through illness or planned holidays, and whatever arrangements Dr Liu had made for such circumstances could be put into place through the suspension.
14. In reply the applicant vigorously contested that the complaint history established any risk to the public. In particular, Mr Free argued that the matter of HCCC v Liu [2018] NSWCATOD 77 was ultimately determined to be a case concerning inadequate record keeping and did not involve any finding of risk to the public, and the imposition of conditions on the practitioner by the Health Ombudsman in Queensland in another matter following a complaint in July 2017 had not been followed by any further action since March 2018.
15. Mr Free submitted that the public interest aspect of the s 150 power did not add anything to the public safety considerations and argued there can be no public interest in suspending a practitioner who does not pose a risk to the public.

Consideration and Reasons

1. On balance there is insufficient basis to justify a stay of the suspension pending the applicant's appeal. I do not find that such an order is reasonably necessary to secure the effectiveness of the appeal.
2. In making this decision the Tribunal makes no findings of fact concerning the relevant complaint, nor concerning any other past or current complaint.
3. The s 150 order of suspension at issue was made as a result of a complaint that involved the death of a patient. The nature of that complaint must be regarded as extremely serious in that the possible risk to the public, if the complaint were to be founded, would inherently be of the gravest kind. Such gravity necessarily weighs heavily in the balance of the rights of the parties.
4. In this application the Tribunal does not stand in the shoes of the Council in its s 150 determination, although a later Tribunal hearing the substantive appeal under s 159 will do so. In this hearing, the Tribunal exercises discretionary power weighing the balance of convenience and the competing rights of the parties to ultimately determine what the interests of justice require. In doing so it is guided by the paramount consideration of the National Law, protecting the health and safety of the public.
5. The fact that there have been two other complaints related to same treatment program does not establish, as the respondent contends, that the 101 Wellbeing Program is a risk to the public. Nor does the published determination of the Tribunal in one matter, and lack of concluded process in the second matter, establish, as the applicant contends, that the practitioner poses no risk to the public. The existence of other adverse outcomes associated with the practitioner's treatment generating prior complaints is simply one factor in the consideration of whether a stay order could adversely affect the health and safety of the public.
6. A risk assessment, whether concerning the 101 Wellbeing treatment program specifically or the practitioner's practice more broadly, is best undertaken by a decision maker with access to specific disciplinary knowledge about Chinese Medicine. The Council s 150 panel had such disciplinary expertise, and so will the Tribunal panel on appeal, as both the s 159 and s 159B appeals will be heard together by a fully constituted Tribunal comprising two practitioner members. Sitting as a single legal member with no disciplinary expertise in Chinese Medicine and no expert evidence, this Tribunal is poorly equipped to assess whether replacing the suspension order with conditions would be effective in responding to the issues identified by the Council when it decided to impose the suspension. Such a course is more appropriate in a matter where the relevant complaint and immediate action decision does not arise from a concern for public safety, see e.g. Wang v Dental Council of NSW [2016] NSWCATOD 90.
7. The applicant's concerns about the impact upon his patients of his suspension must be assessed in the context of the extreme seriousness of the complaint and the paramount consideration of protection of the public. In Knowles v Pharmacy Council of NSW [2017] NSWCATOD 138 a compounding pharmacist seeking a stay of conditions preventing him from mixing compounding medications made a similar argument about his patients suffering from lack of access to his rare or special skill. In that case the Tribunal noted that the more serious the concern of the relevant Council in making an order of immediate action the less consideration should be given to the interim impact of such order upon the practitioner and his patients.
8. Immediate action decisions under s 150 are not punitive and are not permanent. They are temporary orders to protect the public until evidence can be collected and allegations determined. Damage to the reputation of a health practitioner is a possible collateral effect of such orders, particularly when such orders are listed on the public register. Loss of income is an almost inevitable consequence of immediate action involving suspension, particularly for those in private practice. While the applicant does not need to demonstrate exceptional circumstances to justify a stay of the order, such adverse impacts are arguably the norm and not the exception for health practitioners subject to s 150 orders under the National Law. They do not tip the balance to the applicant in a consideration of the balance of convenience and rights of the parties. I accept the applicant's evidence that the suspension has had a damaging effect upon his business, but I do not find that his practice will be entirely and irredeemably lost by the time the appeal is determined in the coming months.
9. It is in the interests of justice that the order of the Council remains in place until the appeal is determined.

Order 1. The application for a stay of the Council's section 150 decision pending determination of the applicant's appeal by the Tribunal is refused. 2. The applicant's appeals under s 159 and 159B are to be heard together. 3. Costs of this application are reserved.

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: 10 January 2019