Other challenges to substantive findings
91Senior counsel for the practitioner expressly eschewed any suggestion that his attack on the substantive findings rested upon a complete absence of material to support the finding made by the Tribunal: CA Tcpt, 29/03/11, p 29. Rather, he sought to argue that the Tribunal had in some way misapplied the evidence it relied upon, failed to acknowledge ways in which statements in reports had been qualified in cross-examination or otherwise wrongly identified the thrust of the expert testimony in the areas involving the exercise of professional judgment.
92It will be necessary to refer to specific passages in the evidence to identify how the argument was put. It is convenient first to refer to the principled basis upon which this approach was said to be available in respect of an appeal limited to a decision in point of law. The practitioner relied upon the reasoning of this Court in Sabag v Health Care Complaints Commission [2001] NSWCA 411, and in particular a passage in the judgment of Davies AJA (with whom Beazley JA and Sperling J relevantly agreed). His Honour held that the reasoning of the Medical Tribunal in that case demonstrated an error of law because it had "relied heavily upon the evidence of Dr Ditton" as expressing views critical of the practitioner, whereas, when read in context, he had declined to express criticism of the procedures actually carried out: at [57]-[58]. His Honour continued:
"59 Accordingly, it appears to me that the Tribunal proceeded upon a fundamental mistake as to the thrust of Dr Ditton's evidence. Dr Ditton did not criticise Dr Sabag's competence in relation to the services which he actually performed.
60 ... [T]he Tribunal failed to have regard to the thrust of Dr Ditton's evidence, which was that the procedures which Dr Sabag carried out were not unsafe. Dr Ditton's evidence strongly supported Dr Sabag's case."
93Davies AJA held that the error made by the Tribunal "was so significant that it invalidated the decision, for failure to take account of a material consideration and for lack of reasons": at [62].
94In similar vein, in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088, Gummow and Callinan JJ stated:
"24 To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice. ...
25 The question remains however whether what occurred, either characterised as a failure to accord natural justice or as that, and more, which we consider it to be, including a constructive failure to exercise jurisdiction, entitles Mr Dranichnikov to relief under s 75(v) of the Constitution."
95To similar effect, Kirby J stated at [88]:
"Obviously, it is not every mistake in understanding the facts, in applying the law or in reasoning to a conclusion that will amount to a constructive failure to exercise jurisdiction. But where, as here, the mistake is essentially definitional, and amounts to a basic misunderstanding of the case brought by an applicant, the resulting flaw is so serious as to undermine the lawfulness of the decision in question in a fundamental way."
96It is sufficient for present purposes to identify an erroneous decision in point of law: the additional issues discussed in Dranichnikov do not directly arise. However, in order to draw a line between errors with respect to facts and errors with respect to law, the facts must be established, or at least unchallenged, and the argument based upon them must have been clearly articulated, and not addressed by the Tribunal.
97The practitioner sought to raise the point by reference to the established ground in administrative law of error of law resulting from a failure to take account of a relevant consideration. In that context, a relevant consideration is a matter which it is mandatory to take into account in the circumstances of the case. It is not often the case that an apparent failure by the Tribunal to take a particular item of evidence into account will constitute a failure to take a mandatory consideration into account such as to constitute an error of law. That which is mandatory, pursuant to the enabling statute, is usually the consideration of an application. Where a Tribunal disregards critical evidence presented by the applicant, the applicant may be able to complain that the Tribunal has failed to address a substantial aspect of the application and thus has failed to exercise its statutory duty. In a matter involving adversarial proceedings between two parties, a respondent may be able to put a similar argument in respect of its response. However, it is not possible to characterise the conduct of a Tribunal as erroneous in point of law unless, in effect, the Tribunal has misunderstood, in a substantial respect, the case put by the practitioner. Such a claim will not be made good simply by pointing to passages in the evidence which have not been referred to by the Tribunal in its reasons, or by suggesting that some evidence was given greater weight than it should have received, or that the Tribunal relied on some evidence to the exclusion of other elements.
98In the present case, as will appear from the examples relied upon by the practitioner, this ground was not made good in respect of the major complaints.
99In relation to the conduct of the practitioner on 3 July 2007, Dr Reddan expressed the following opinion in her report of 10 March 2010 at paragraph 4.1:
"On 3 July 2007, Dr Lucire was aware that Linda's mental state had deteriorated further and indeed what she documents in her notes is a condition which many practitioners would regard as a psychotic depression. Linda should have been prescribed an antidepressant and an antipsychotic. It was not unreasonable for Dr Lucire to prescribe diazepam 5mg as required and some temazepam 10mg at night, but this was insufficient and too non-specific given the symptoms that Linda was then describing.
Dr Lucire's medication management of Linda on 3 July 2007 fell significantly below the standard which could be expected of a practitioner of an equivalent level of training or experience and invites my strong criticism."
100The practitioner points to a series of questions and answers in cross-examination based on the assumption that the practitioner had formed the view that there was "a possibility of an interaction between" substances being administered by the father and the Largactil prescribed by the practitioner: Tcpt, 09/08/10, p 427. The questioning concluded:
"Q. It's not an unreasonable request, is it, to cease taking Largactil or suspend Largactil for a day or so and to stop the fast oxidisers and then re-assess the situation?
A. Well, look it wouldn't be totally unreasonable but in this girl's case the psychosis was such as - I think wouldn't have been ideal, but one could say that suspending it for a day or two, provided you're confident that the parents can manager her in that time, but it seems that she had taken very little really Largactil at all over the preceding period of time anyway. So in some respects, it wouldn't have made much difference, I think, one way or the other. I think the main thing is that you would instruct the father to stop doing what he's doing.
...
Q. In your view, in any event, the fact that she'd taken a small amount Monday or Tuesday did not make much difference?
A. Not really because I think she needed to be on bigger doses for longer and as I said in my report, I think that the situation, when you take the totality of the situation, was that really Linda needed hospitalisation. And the totality of that included the fact that the parents weren't going to cooperate with treatment."
101In written submissions handed up during the hearing of the appeal, the practitioner quoted the penultimate question and answer set out above, but not the last question and answer. Read together, and in context, it is far from clear that Dr Reddan was qualifying her views in any respect. In addition, the absence of the practitioner from the witness box made it difficult for the Tribunal to know whether it should accept the hypothetical opinion on which the questioning was based. On one view, Dr Reddan did not "significantly modify her criticism" in the passage of cross-examination relied on: the Tribunal was therefore not bound to conclude that she had done so and that it was inappropriate to rely upon the criticism made by Dr Reddan in her report. Finally, it cannot be said that the Tribunal disregarded the oral evidence of Dr Reddan: it expressly referred to and quoted in its reasons part of the penultimate answer set out above: Reasons, p 47.
102The other three opinions expressed by Dr Reddan in her report, with which the practitioner took issue, concerned suggestions that the practitioner should have scheduled the patient under the Mental Health Act . Following re-examination of Dr Reddan by counsel for the Commission, two members of the Tribunal asked questions as to the different language for scheduling under the New South Wales Mental Health Act and the equivalent Queensland legislation (Tcpt, p 437):
"Q. The New South Wales Act - that is, under the Mental Health Act - under Section 9 of the Mental Health Act of 1990, I'll just bring to your attention, is at this time was that:
'A person is mentally ill if the person is suffering from mental illness and owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary for the person's own protection from serious harm.'
Serious harm, and in relation to a mentally disordered person, it's for the person's own protection from serious physical harm. But, in bringing that to your attention, that does not in any way affect the opinions which you have expressed to the Tribunal. Is that correct?
A. That is correct, your Honour."
103Senior counsel for the practitioner then obtained leave to ask a further question in the following terms (Tcpt, p 438):
"Q. 'Suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary: (a) for the person's own protection from serious harm' - does not include or mean serious harm caused by the illness itself. I'm suggesting to you that, as a matter of statutory construction, it does not mean that."
104Objection was taken to the question and it was rejected. However, as appeared from the written submissions, the practitioner sought to make good the proposition that Dr Reddan, in taking the view that involuntary hospitalisation was required, misunderstood the law in New South Wales.
105No ground challenged the rejection of the question, perhaps understandably in the circumstances. However, a legitimate question might have been whether Dr Reddan's view of the basis of proposed hospitalisation was restricted to a concern that the patient might suffer serious harm from the condition itself, rather than from violent behaviour resulting from the condition. That question was not asked and it is not clear what the answer would have been. Furthermore, it is not entirely clear what the correct construction of s 9 required: sub-s 9(2) provided:
"(2) In considering whether a person is a mentally ill person, the continuing condition of the person, including any likely deterioration in the person's condition and the likely effects of any such deterioration, are to be taken into account."
106More significantly for the argument in this Court, as the practitioner acknowledged, it was "unclear what view the Tribunal took" in its reasons in relation to Dr Reddan's evidence in this respect. Accordingly, any point which might have been available would not assist the practitioner. In fact, the Tribunal made its finding on the basis of the evidence of Dr Jurd and merely "noted" Dr Reddan's opinion that an "untreated psychotic condition results in a denial of freedom of choice": Reasons, p 54. Its substantive reasoning was in the following terms at pp 53-55:
"It is the opinion of Dr Jurd that on 5/7/07 Patient A was distressed and in urgent need of care. He was of the opinion, as expressed in his report of 10/6/08, that hospitalisation was strongly indicated. He further stated in that report that the practitioner's failure to hospitalise Patient A was a departure from the standard and significantly below the standard expected of a similarly qualified practitioner and the departure invited a strong criticism.
... The Tribunal does find and is satisfied that the practitioner failed to recommend any hospitalisation of Patient A ... [on] 5/7/07 and failed to properly consider and/or assess whether Patient A was mentally ill or mentally disordered within the meaning of the Mental Health Act on 5/7/07 and to take action to have the patient hospitalised. The Tribunal finds that in view of the observed behaviour of the patient on 5/7/07 and her failure to be able to talk to her in relation to her thoughts the practitioner ought to have assessed the patient and taken action to have the patient hospitalised and failed to take any action for that to occur."
107There was uncontradicted evidence from Dr Jurd in support of that conclusion; the fact that Dr Reddan took a slightly different approach, to reach to the same result, was noted but not relied upon by the Tribunal. The complaint about the basis of Dr Reddan's stated opinion in the passages referred to by the practitioner had no material bearing on the availability of the inference drawn by the Tribunal.
108Next, the practitioner complained that Dr Jurd also qualified his conclusions in his oral evidence. It is said that, from reading the practitioner's notes of the consultation on 23 April 2003, he accepted that there was "insufficient basis to justify involuntary admission". He also stated that there was a "thin" basis for compulsory hospitalisation.
109It is true that in his evidence in chief, Dr Jurd had stated that the observations made by the practitioner in her notes were not sufficient to justify involuntary admission to a psychiatric hospital: Tcpt, p 311. In cross-examination, however, he changed his position from saying there was "no basis", to there being "a thin basis" for hospitalisation: Tcpt, pp 549 and 550. Secondly, and more importantly, the Tribunal's findings in respect of the consultation on 23 April did not include a finding that the practitioner had failed to arrange the patient's admission to hospital on that day.
110Dr Jurd expressed a different view in respect of 5 July 2007. As at that date, he strongly criticised the practitioner's failure to hospitalise the patient. On the appeal, the practitioner complained that he modified his views during his oral evidence by accepting that the best treatment for the patient might require different interventions at different times, following which came the further exchange (Tcpt, p 595):
"Q. All questions of judgment in the individual instance, aren't they?
A. Yes.
Q. And persons' judgment differ in relation to the individual, the practitioner involved. Is that right?
A. Yes.
Q. And also influenced by the particular circumstances in which they find themselves. Is that not right?
A. Yes."
111Those answers need not be understood as qualifying Dr Jurd's opinions as to what was required on 5 July. In re-examination he confirmed that the patient was psychotic on 5 July and that she required psychotic medication: Tcpt, p 595. It was open to the Tribunal to conclude that Dr Jurd had not qualified his opinion as to what was necessary with respect to the patient on 5 July, by the answers set out above in respect of questions asked at a high level of generality.
112Other criticisms were made of the way in which the Tribunal expressed its conclusions, and the language it used to summarise opinions of the experts. It is, however, not possible to identify any error in point of law arising from this material and it is not necessary to deal with the complaints in detail. The findings of the Tribunal in respect of the conduct said to amount to unsatisfactory professional conduct cannot be set aside on this ground.