Lucire v Health Care Complaints Commission

Health Care Complaints Commission (Respondent and Cross-Appellant) Representation: Counsel:

C E Adamson SC/C L Lenehan (Respondent) Solicitors:

Health Care Complaints Commission (Respondent) File Number(s): 2010/315637 Decision under appeal Before: Deputy Chairperson Judge Puckeridge; Dr L Brash; Dr J Mair; Dr E O'Brien File Number(s): 40031/2009

Judgment 1McCOLL JA : I agree with Basten JA's reasons and the orders his Honour proposes. 2BASTEN JA : The background to the present proceedings is set out in the principal judgment of the Court delivered on 20 April 2011: Lucire v Health Care Complaints Commission [2011] NSWCA 99. The appellant ("the practitioner") is a consultant psychiatrist in respect of whom the Medical Tribunal had upheld a complaint of unsatisfactory professional conduct. The conduct in question related to the treatment of a single patient in 2006-2007. On appeal to this Court, the practitioner challenged the findings of the Tribunal and the orders made by it in the exercise of its disciplinary powers. 3The effect of the principal judgment was to reject the challenge to the findings of the Tribunal in respect of unsatisfactory professional conduct, but to uphold the challenge to the orders. The orders were set aside because the practitioner had not been given a reasonable opportunity to call evidence and address the Tribunal with respect to the orders proposed by the respondent Commission. Further, the Court accepted a submission by the practitioner that the practical operation of the orders made by the Tribunal was equivalent to suspension or deregistration of the practitioner. An order to that effect could not, however, have been made absent a finding that she had been guilty of professional misconduct. Such a finding, sought by the Commission, was rejected by the Tribunal. The particular difficulty identified was that the orders precluded the practitioner from undertaking any work in the practice of medicine, other than the preparation of medico-legal reports; treatment of patients was not permitted. 4In the light of those conclusions, the parties were given an opportunity to call evidence and make submissions as to the orders which should be made by this Court in substitution for those made by the Tribunal. The Court is empowered to "make the order it thinks proper having regarding to the merits of the case and the public welfare, and in doing so may exercise any one or more of the powers of the Tribunal under this Law": Health Practitioner Regulation National Law (NSW) , s 162A. 5In addition to the disciplinary orders, the orders set aside included an order that the practitioner pay the Commission's costs of the inquiry before the Tribunal. Further, the Court gave the parties an opportunity to comment on its tentative view that the Commission should pay 75% of the practitioner's costs in this Court.

Disciplinary orders: further material 6In accordance with the Court's directions, the Commission filed a document setting out the orders which it sought. The orders required the impositions of conditions on the practitioner's registration and set out significant detail as to the mechanics of their operation, but may be broadly summarised in the following terms (as suggested by the Commission in its written submissions, par 13): (1) requiring the practitioner to practice in a group practice of at least three practitioners; (2) requiring that the practitioner's clinical practice be supervised by another practitioner operating from the same location as the practitioner, with specific requirements where: (a) the practitioner makes a diagnosis differing from that of a previous treating psychiatrist, or (b) is required to manage a patient with an acute psychosis; (3) providing for the auditing and monitoring of the appellant's practice and compliance with the proposed conditions. 7The Commission tendered further evidence in support of the orders sought. Some of this material was controversial. The bulk of it related to complaints in relation to three patients seen by the practitioner at Albury Base Hospital, two in March 2002 and one in August 2004. The complaints were dealt with by a Professional Standards Committee, which handed down its decision on 23 November 2007. The complaints in respect of the first patient were dismissed, but particular complaints in relation to the treatment of the second and third patients were upheld. In addition to the lengthy decision of the Committee, the tender also included a letter to the practitioner reporting the terms of the decision and orders, which is of no immediate relevance. The result of the Committee's deliberations was a reprimand and a direction that the practitioner attend a senior psychiatrist approved by the Medical Board "for the purpose of seeking and taking advice with a view to improving some aspects of her practice of medicine". In compliance with that direction, the practitioner met Dr John Champion on two occasions, the meetings each lasting for two hours. Included in the tender were Dr Champion's report to the Medical Board of 16 May 2008 and Dr Lucire's report of the same sessions, dated 7 July 2008. 8The Commission also sought to tender a report prepared by the Medical Board on 12 September 2008 in respect of its inquiry in relation to the current complaints, undertaken pursuant to s 66 of the Medical Practice Act 1992 (NSW), as then in force. That material was part of the material before the Tribunal (and this Court) and did not require separate tender. 9Finally, the Commission tendered a report in Children's Law News for July 2008 of a decision by Magistrate Mitchell, handed down on 21 July 2008, In the Matter of Samantha . The young person involved in those proceedings was the subject of varying diagnoses of psychotic illness (schizophrenia, schizoaffective disorder or bipolar disorder) on the one hand, and, on the other, drug toxicity caused by anti-psychotic medication. The latter diagnosis was supported by Dr Lucire and Dr David Bell. (Drs Lucire and Bell gave evidence without having met the young person.) The magistrate preferred the views of the practitioners who diagnosed psychotic disturbances. 10The practitioner objected to the material relating to the findings of the Professional Standards Committee of 23 November 2007 as having "no relevance" to these proceedings. 11It may be accepted that their relevance is limited: the conduct complained of occurred some years before the conduct in issue in the present proceedings and the findings of the Committee were made after the conclusion of the conduct involving the patient in the present proceedings (which ended in July 2007). Nevertheless, the nature of the conditions imposed on the practitioner in relation to those earlier complaints which were upheld, and the consequences of the orders, are not insignificant in an evaluation of the conditions which should now be imposed. In particular, it will be appropriate to refer below to the report of Dr Champion, following the two counselling sessions with the practitioner. Dr Champion was able to obtain some insight into the thinking of the practitioner which is not otherwise available to this Court. While limited weight should be given to the actual findings of the Committee, its report provides background against which to understand both the nature of the conditions imposed and the consequent counselling reports of Dr Champion and the practitioner. All that material should be admitted for the purpose of formulating appropriate protective orders. 12The practitioner also objected to the Court having access to the report of the Medical Board's inquiry under s 66 of the Medical Practice Act . To make use of that in these proceedings was described as "unfairly prejudicial" to the practitioner. Somewhat inconsistently, when addressing the proposed orders, the same submissions relied upon views expressed by the practitioner in the course of the s 66 inquiry, which views are only available to this Court from the report prepared by the Medical Board. That is because the practitioner gave no evidence before the Tribunal, nor before this Court. Furthermore, the report of the s 66 inquiry was before both the Tribunal and this Court in any event. There can be no legitimate objection to the Court having regard to it, whilst of course taking into account the limited basis upon which it should be accorded relevance. 13Finally, the practitioner objected to the tender of the report of the Children's Court. The Commission sought to rely on this material because it was said to provide further evidence of the practitioner influencing a child's parents in a manner which led to the withdrawal of anti-psychotic medication, by inference, inappropriately, from a patient who had previously had a serious psychotic episode. The objection to this material is properly taken. This Court is in no position to assess the appropriateness or otherwise of the advice given by the practitioner in that case. With no disrespect to the learned Magistrate, who was not writing for the benefit of his Court in disciplinary proceedings, little can be gained from his views as to the preferable medical evidence, based on the material before him. More importantly, those views provide no useful basis upon which this Court could formulate proper disciplinary orders. The tender of the report in the Children's Law News , being annexure G to the affidavit of Sarah Connors of 4 May 2011, is rejected.

Disciplinary orders: practitioner's evidence 14The evidence tendered by the practitioner comprised letters from her solicitor to a number of eminent persons, together with their responses. This material, which may be referred to as character evidence, was annexed to the affidavit of her solicitor. The affidavit also annexed a copy of the curriculum vitae of the practitioner. 15Character evidence had been prepared for the Tribunal, and provided to this Court at the hearing of the appeal. However, it was subject to the criticism that it was unclear whether those asked to express their views in respect of the practitioner were aware, and if so at what level of detail, of the findings made by the Tribunal. This omission was rectified by providing the prospective referees with copies of the Medical Tribunal determination as to disciplinary orders dated 27 August 2010 and the principal judgment of this Court. 16The assessment of this character evidence is a matter of no little difficulty. The Commission submitted that it should be given little, if any, weight and referred to the remarks of Griffith CJ in Incorporated Law Institute of New South Wales v Meagher [1909] HCA 87; 9 CLR 655 at 677: "With regard to the numerous certificates of character, some on oath, by which the application is supported, apart from any question of the weight of such testimonials in general, I cannot suppose that the gentlemen who gave them were aware of the facts now disclosed. If they were, and thought that such conduct is right and proper, their opinion is of no value. It could not in any view be substituted for that of the Court. If they were not, the foundation for their opinion is gone." 17Those comments must be read in context: they were made in respect of an application by a former solicitor to be readmitted, having been struck off in circumstances which demonstrated moral turpitude. This was not such a case. The referees unanimously spoke of the practitioner's generosity of spirit, honesty, integrity and devotion to promoting her view of the public welfare. Her high moral character is not in doubt: the question, at one level, is whether her commitment to a particular "cause" has blighted her professional judgment. 18In identifying the issue in that way, several of the character witnesses assumed that the practitioner was being disciplined for acting in accordance with clinical evidence and research demonstrating that "majority opinion" as to the use of psychotropic drugs was wrong, because they caused harm to individuals. The referees urged, sometimes in this language, to avoid "shooting the messenger". 19These concerns misapprehended the nature of the evidence before the Tribunal and the findings it made. The practitioner did not seek to explain to the Tribunal her beliefs with respect to psychopharmacology, let alone the research or other material upon which they were based. During the Medical Board inquiry, she referred to her clinical experience of akathisia, suicide, violence and psychosis as side effects of anti-depressants. In a statement to the Board she said (Tcpt, 12/09/08, p 11): "I looked at that and I thought that if there are people killing on these drugs and committing suicide there must be the subtly [sic] or variants of people who are repeatedly suicidal and violent on these drugs. ... These people who become violent, suicidal and homicidal and psychotic on serotonin drugs ...." 20The Board asked her if a reference she gave to "research" involved studying the literature (with which she agreed) but not undertaking original research, as to which she indicated she had done some herself: p 12. Later she stated in relation to her long-term patients (p 13): "[T]hey're mostly people I've taken out of a state of chronic akathisia, restored to normality to their pre-morbid conditions; and they are now, with their consent, my research subjects in that I have done [cytochrome] studies of all of them and they were all abnormal. ... These are people turning up in medico-legal situations who have started off as fully functional workers, they get stressed, they get Prozac. If they've the wrong genetics they can go crazy on it, they don't know. They keep attempting suicide, they're homicidal, they're in a terrible state and I do what I can." 21It does not appear from this material that the practitioner considered that all psychotropic drugs are harmful in all cases: rather, she appears to hold the view that particular drugs (perhaps all) can be harmful in some cases. She may also hold views about the effects of multiple drugs taken contemporaneously. 22There is no reason in principle why such views, having some scientific basis, and respected by peers, albeit a minority view, would not form the basis of legitimate psychiatric practice. What was missing in the present case was any evidence from the practitioner as to the precise nature and basis of her views, the symptoms which supported a particular approach and the reason why that approach was adopted (if that were the case) in relation to the patient Linda Walicki. Opinions critical of her treatment of Ms Walicki were expressed by expert psychiatrists called by the Commission before the Tribunal: no expert evidence was presented challenging the basis of those opinions. It follows that disciplinary orders must be formulated on the basis that her treatment of the patient in question was unsatisfactory in the manner recounted in each of the particulars upheld by the Tribunal and set out at [46] of the principal judgment of this Court.

Assessment of appropriate orders 23Appropriate orders should be formulated on the basis, accepted above, that the practitioner is a person of high moral standards, and integrity. In his report of 16 May 2008, Dr Champion noted that his sessions with the practitioner had not caused her to change her views in relation to diagnosis and treatment. He continued: "My other observation was that Dr Lucire is, as the Board has accepted, a widely experienced and well qualified practitioner [whose] views needed to be respected .... After careful review of all the information sent to me by the Board and information from Dr Lucire in the form of scientific research and other material supportive of her views, I personally concluded that: it was not unreasonable for Dr Lucire to maintain her views regarding correct and responsible patient care as well as her views concerning her communications with her colleagues." 24Dr Champion was not concerned with the events surrounding the treatment of Ms Walicki and no further opinion was sought from him in respect of those matters. Significantly, Dr Champion took the view that "further counselling would be most unlikely to alter any of Dr Lucire's views". 25Written submissions filed on behalf of the practitioner stated: "Dr Lucire now has focused on the side-effects of psychotropic drugs and is investigating links with genetic abnormalities. Consequently she is less disposed to accept adverse drug reactions without confirmation of such genetic abnormalities by objective testing. She wishes to concentrate on that research and writing medico-legal reports on patients suspected of such reactions and has no intention currently of treating any psychotic patients." There was no evidence, other than what she said to the Board in 2008, to support any of the statements made in this passage. 26The finding of unsatisfactory professional conduct does not allow this Court to suspend the practitioner or remove her name from the register. Nor should it impose conditions which would be tantamount to such a step. On the other hand, recognising that she is entitled to practice, her current intention not to treat psychotic patients (assuming that she has such an intention) would be irrelevant. It is her current entitlement, pursuant to registration as a medical practitioner, which the Commission seeks to qualify. 27Whatever her intentions in relation to psychotic patients, she resists orders requiring her to work in a "group practice", or to be subject to supervision and "audit". She submits that she has been, in a practical sense, suspended from practice since the decision of the Board in October 2008. Further restriction, it was submitted, was not necessary to prevent a recurrence of the impugned conduct. 28There may be merit in these submissions, but this Court is not in a position to assess them. The practitioner did not give evidence before this Court, so as to provide the factual basis upon which the Court could act as she requested. The purpose of such evidence would not have been a public recantation of professional heresy, as was implied by some of the referees, but an explanation of her supposed change in relation to the treatment of psychosis which is described in the submissions as being "more conservative in her approach to issues which confront her". The Court is entitled to be told in what way she "has changed her practice", given that she is no longer practising and states that she has no intention of treating psychotic patients. In the absence of such evidence, some conditions are required to protect the public. 29The practitioner also submitted that the conditions proposed by the Commission seek to prevent her from practicing medicine. That is apparently because it is unlikely that she would be able to enter a "group practice", at least on conditions which require a degree of supervision. That is not because of the finding of the Tribunal with respect to unsatisfactory professional conduct, but for a reason identified in the submissions in the following terms: "The HCCC's public vilification of Dr Lucire with the allegations originally made against her, such as of complicity in herbal psychiatric treatment, renders it unlikely that many practitioners would consent to be associated with Dr Lucire in practice." No reference was given to evidence supporting this allegation, which accordingly cannot be accepted. 30Separately, the practitioner complains that the conditions suggest she is unable "to be trusted to conduct any part of medical practice without close supervision". This complaint requires reference to the terms of the conditions proposed by the Commission which, as far as relevant, provide: "1. In the event that Dr Lucire engages in medical practice other than exclusively medico-legal practice that she practice only in a Medical Council of NSW - approved group practice (group is defined as at least three practitioners), with one other practitioner on site, for such periods as Dr Lucire is on the premises and practicing in an area other than medico-legal practice. ... 3. To nominate a supervisor prior to commencing practice in an area other than medico-legal practice, to be approved by the Medical Council of NSW, to monitor and review her clinical practice and compliance with these conditions ...." 31The practitioner's objection is expressed too broadly, in that the conditions do not apply to purely medico-legal practice. On the other hand, the subject-matter of the complaint did not extend beyond the treatment of a psychotic patient. There is also a difficulty in defining the exception, "medico-legal practice". There is no prohibition against a patient referred for medico-legal assessment becoming a treated patient; nor would it be easy to define that boundary. Her own statement to the Board, set out at [20] above, suggests that individuals referred for medico-legal report may become patients. Further, not only are the limits of medical practice hard to identify with precision, but the identification of patients suffering from psychosis should not depend on a firm or unequivocal diagnosis, but merely on a possible diagnosis. 32The purpose of requiring group practice and a degree of supervision should be accepted. The condition should be expressed in the following terms: "The practitioner's registration is conditioned so that she may practice psychiatry involving the treatment of possibly psychotic patients only: (a) as a member of a practice including at least two other psychiatrists, (b) in circumstances where one of the other psychiatrists undertakes to provide supervision on the following terms: (i) the practitioner and the supervisor are to meet for at least two hours on a fortnightly basis in the first three months and thereafter on a monthly basis; (ii) at such meetings the supervisor is to review the cases of all new patients and all patients with a significant change in their condition, the medical records kept by the practitioner, clinical outcomes, patient follow-up and communication with referring practitioners; (iii) the supervisor is to complete a record of matters discussed at the meeting in a format prescribed or approved by the Medical Council of New South Wales; (iv) the supervisor is to report to the Medical Council of New South Wales in writing and in a format prescribed or approved by the Council, within 7 days of each meeting; (v) the supervisor is required to inform the Medical Council of New South Wales immediately of any concern in relation to the practitioner's compliance with the requirements of supervision or clinical performance or if the relationship of practitioner and supervisor ceases." 33The conditions of supervision outlined above are less stringent than those proposed by the Commission. The Commission proposed weekly meetings for the first month after commencing practice and thereafter at fortnightly intervals. The conditions proposed do not include a requirement of "direct observation" of consultations for at least two hours each month as proposed by the Commission. The appropriateness and value of such direct observations is not self-evident. 34Further, there is no requirement that the Medical Council approve the practice. The Medical Council policy in respect of supervision should apply, which imposes requirements in relation to the persons qualified to be supervisors. That is a sufficient constraint in the circumstances. 35Condition 4 proposed by the Commission was that the practitioner submit to "a random audit of her medical practice, by a person or persons nominated by the Medical Council". The audit was to take place once within three months of commencement of practice, subject to the Medical Council having authority to determine if further audits or other action might be required. The purpose of such a requirement was not explained in the Commission's written submissions and is not self-evident. It appears to be a backup arrangement in the event that the supervisor fails to perform his or her function adequately. However, if the Medical Council has concerns in relation to the level of supervision, it can be expected to discuss its concerns with the supervisor. 36The Commission also sought two further conditions relating to diagnosis: "5. In the event she makes a psychiatric diagnosis which differs from the diagnosis by a previous treating psychiatrist of a patient, to obtain a second opinion from her approved supervisor concerning her diagnosis within 28 days of making the diagnosis. ... 6. To obtain a second opinion from her approved supervisor concerning her management of any patient suffering from acute psychosis within seven days of the diagnosis of acute psychosis." 37Supervision is unlikely to work successfully except in a co-operative environment. Whether or not it works successfully, it is difficult to see what additional benefits are likely to flow from conditions 5 and 6. Further, they are capable of a somewhat arbitrary operation. They appear to be unnecessary. However, the proposal did include provision for review where the supervisor is unavailable: the conditions in relation to supervision should contain such a provision. 38The practitioner also objected to order 7 as proposed by the Commission, which was in the following form: "7. That she authorises and consents to any exchange of information between the Medical Council of New South Wales and Medicare Australia or the Pharmaceutical Services Branch where such exchange is necessary to facilitate the monitoring of compliance with these conditions." 39The effect of such a condition would be to allow the Medical Council to obtain access to claims made on Medicare in respect of consultations and in relation to the prescription of drugs. There was no suggestion that the practitioner over-services patients, or prescribes unnecessary drugs, indeed the evidence was to the contrary. No particular justification was presented in favour of such a condition and it should not be imposed. 40The Commission sought an order that the practitioner pay the its costs of the proceedings in the Tribunal. There was some lack of clarity as to whether it was proposed as a condition of resuming practice, but, if so, it was not supported by argument. It will be sufficient to make an order for costs, in terms which will be addressed below. 41There remains a question as to the period over which the conditions should operate. Two factors must be taken into account. First, according to her evidence to the Medical Board, the practitioner did not practice form some six months following the events of 5 July 2007. Although she had further patients in 2008, she was effectively prevented from continuing to treat psychiatric patients from late 2008 until the principal judgment of this Court. Secondly, the practitioner has been registered in this State for more than 40 years and is unlikely to resume the full-time practice of clinical psychiatry: she is not at the beginning of a potentially lengthy career. The conditions should obviously cease to apply if she gives notice of an intention to cease practicing. In any event, they should not extend for a period in excess of three years. Thereafter, any restrictions will need to be based upon fresh material, not unsatisfactory professional conduct which occurred seven years earlier. 42The terms of the orders are set out at the end of the judgment.

Costs of inquiry 43The leave granted by this Court on 20 April 2011 extended to orders to be made in lieu of those set aside: these included the order that the practitioner pay the Commission's costs of the proceedings in the Tribunal. 44The practitioner submitted that she should not have to pay any costs and should receive her costs of meeting the case of professional misconduct (which was dismissed) and certain costs unnecessarily incurred as a result of improper conduct of the Commission. She noted that approximately half the allegations (presumably referring to particulars) were not substantiated. She also referred to the attempted amendment to add particulars in 15 and 16, which was disallowed. 45The Commission sought costs of the proceedings before the Tribunal, presumably on the basis that it had been successful in obtaining disciplinary orders and that costs should follow the event. 46Neither party referred to the relevant power of the Tribunal with respect to costs of inquiries. The power of the Tribunal to award costs, contained in the Medical Practice Act , Sch 2, cl 13, read as follows: " 13 Tribunal can award costs (1) The Tribunal may order the complainant, if any, the registered medical practitioner concerned, or any other person entitled to appear ... at any inquiry or appeal before the Tribunal to pay such costs to such person as the Tribunal may determine. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. (3) The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the Registrar of the District Court is to enter judgment for the amount unpaid together with any fees paid for filing the certificate." 47The provision has been set out in full because, lest there be any ambiguity in sub-cl (1), it is apparent from the remaining provisions that the Tribunal is to determine the amount of such costs, as well as the persons by whom and to whom the amount is to be paid. Neither party addressed the quantum of costs in submissions or evidence before this Court. Nor would it necessarily be appropriate for this Court to make such an assessment itself. If this Court is to exercise a power under the National Law, the relevant provision is in virtually identical terms to cl 13, except that the final words in subcl (1) read "to another person as decided by the Tribunal": Sch 5D, cl 13. There does not appear to have been a change in meaning. 48At a time when the power to award costs was to be found in the Medical Practice Regulation, reg 27(1), this Court held that, in accordance with general principles, costs should follow the event: Ohn v Walton (1995) 36 NSWLR 77. In that case, the Tribunal having failed to award costs in favour of the successful practitioner, the matter was remitted to the Tribunal for it to determine the costs to be paid by the complainant to the practitioner: at 85G (Cole JA, Gleeson CJ agreeing with the proposed orders). 49Three factors militate against the Commission recovering all its costs in the present case. First, the Commission was successful in obtaining findings against the practitioner in respect of unsatisfactory professional conduct, but not professional misconduct. It is not correct to apportion costs equally between the dismissal of the complaint with respect to professional misconduct and the upholding of the other complaint. The factual basis for each complaint was the same: the proper characterisation of the legal consequences of the findings of fact was a discrete issue, involving a relatively small proportion of the time at the hearing and submissions and on which the Commission was partly successful and partly unsuccessful. Any reduction in costs on account of the part on which it was unsuccessful would be relatively minor. 50Secondly, the Commission failed to establish each of the particulars pleaded. This aspect is not to be assessed by a numerical calculation of the number of paragraphs of the particulars which were upheld and the number which were rejected. Nor would failure to establish some particulars necessarily result in any diminution in the costs payable to the Commission. However, where it can be said that discrete elements of the conduct complained of were not established, it may be appropriate to reduce the costs to be recovered by the Commission. 51In the principal judgment, certain criticisms were made of the manner in which the complaint had been pleaded: [39]-[45]. Similar comments had been made made, as noted at [43] of the principal judgment, well before the present complaint was prepared. The Commission cannot complain that it was not on notice of the need to revise its practices in this respect. These considerations militate in favour of there being some reduction in the costs recovered by the Commission, to allow for aspects of the complaints as to which it was unsuccessful. Again, no precise evaluation is possible. 52Thirdly, the practitioner alleged that there had been oppressive conduct on the part of the Commission in the Tribunal. This was a matter addressed in part in the principal judgment, the practitioner having complained of procedural unfairness in the conduct of the hearing: at [113]-[122]. Otherwise, the practitioner seeks to rely upon an affidavit of her solicitor setting out certain procedural steps taken in the course of preparation for the proceedings, which were said to give rise to unnecessary expense for the practitioner in preparing for the hearing. It is impossible for this Court to assess the claims and counter-claims of the parties in this respect: without suggesting that proceedings before the Tribunal should be unduly interrupted by interlocutory applications, any realistic attempt to impose a costs penalty on the Commission should have been undertaken contemporaneously with the conduct complained of. 53Taking into account the degree to which the complainant was unsuccessful before the Tribunal, the appropriate basis for the calculation of costs in the Tribunal should be that the practitioner pays 70% of the Commission's costs of the inquiry. The question of costs should be remitted to the Tribunal for it to determine an appropriate amount and provide the relevant certificate.

Costs of appeal 54In the principal judgment, the Court proposed a tentative order for costs, namely that the Commission should pay 75% of the costs of the practitioner in this Court: at [154]. The Commission did not seek any variation of that order and the practitioner did so on a somewhat qualified basis, that is, only in the event that the tentative view of the Court should be subject to revision. No persuasive basis has been made out to review that proposed order and it should now be made. 55As noted above, there was some ambiguity in the submissions of the Commission as to whether it sought the payment of costs as a condition of practicing medicine, or merely intended a separate order as to costs. The appropriate course in the present case is that the orders should be dealt with separately from the conditions of practice. Further, the practitioner should be entitled to set off against the costs payable by her in respect of the proceedings in the Tribunal, the costs payable to her by the Commission in respect of the appeal (assuming that the Tribunal costs will exceed those payable in relation to the appeal: if the assumption is incorrect, the reverse set off should be available).

Conclusions: orders 56For the reasons noted above, the following protective order should be made: 1 The registration of the practitioner is subject to the following conditions: (1) The practitioner may practice psychiatry involving the treatment of: (i) patients who have previously been diagnosed by a psychiatrist or other medical practitioner as psychotic or suffering from acute psychosis; or (ii) patients whose behaviour or symptoms, assessed in accordance with the standards of a competent psychiatrist, could reasonably be assessed as psychotic or suffering from acute psychosis; only: (a) as a member of a practice including at least two other psychiatrists, and (b) in circumstances where one of the other psychiatrists undertakes to provide supervision on the following terms: (i) the practitioner and the supervisor are to meet for at least two hours on a fortnightly basis in the first three months and thereafter on a monthly basis; (ii) at such meetings the supervisor is to review the cases of all new patients of the practitioner and all patients with a significant change in their condition, the medical records kept by the practitioner, clinical outcomes, patient follow-up and communication with referring practitioners; (iii) the supervisor is to complete a record of matters discussed at the meeting in a format approved by the Medical Council of New South Wales; (iv) the supervisor is to report to the Medical Council of New South Wales in writing and in a format approved by the Council, within 7 days of each meeting; (v) the supervisor is required to inform the Medical Council of New South Wales immediately of any concern in relation to the practitioner's compliance with the requirements of supervision or clinical performance of the practitioner, or if the relationship of practitioner and supervisor ceases. (2) Before commencing practice in the circumstances referred to above, the practitioner shall: (a) nominate to the Medical Council a supervisor, who is a member of the practice she is to join, and who satisfies the requirements of a supervisor under the Policy No PCH 7.5, Supervision (Performance, Conduct, Health) of the Medical Council of New South Wales, Part 1, to provide supervision in accordance with the description noted at p 3, level 2; (b) provide the proposed supervisor with the terms of these conditions and a copy of the Reasons of the Medical Tribunal of 7 June 2010 and the judgments of this Court; (c) arrange for the proposed supervisor to advise the Medical Council of his or her willingness to act in that role; (d) obtain the approval of the Medical Council to the proposed supervisor (which approval is not to be unreasonably withheld), and (e) inform each psychiatrist working in the practice of the terms of these conditions and supply to each a copy of the Reasons of the Medical Tribunal of 7 June 2010, and the judgments of this Court. (3) In the event that the supervisor will be unavailable to supervise the practitioner at the location of their practice for a period exceeding 15 continuous working days, he or she shall give the practitioner such advance notice as is possible, so that an alternative supervisor, approved by the Medical Council, may be engaged for the period of absence. (4) The practitioner shall bear any costs associated with the supervision. (5) These conditions are to apply until the practitioner notifies the Medical Council in writing of her intention to cease practicing as a psychiatrist, or until the expiration of three years from the date of these orders, whichever date is the earlier. (6) The practitioner is required, as part of these conditions, to provide a copy of these conditions to each principal of the practice and to provide a copy signed by each principal to the Medical Council prior to commencing practice in accordance with these conditions. 57In addition to the protective order, the following orders as to costs should be made: 2 Remit the issue of costs to the Medical Tribunal for it to determine costs on the basis that the practitioner must pay to the Commission 70% of its costs of the inquiry before the Tribunal. 3 Order that the Commission pay the practitioner 75% of her costs of the proceedings in this Court. 58 SACKVILLE AJA : I agree with Basten JA.

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: 07 July 2011