Lucire v Health Care Complaints Commission

Judgment 1McCOLL JA : I agree with Basten JA's reasons and with the orders his Honour proposes. 2BASTEN JA : On 5 July 2007, in tragic circumstances, Ms Linda Walicki killed her father and one of her sisters, and severely wounded her mother. The attacks occurred in the course of a psychotic episode and, having been charged with two counts of murder and a separate count in respect of her mother of wounding with intent to murder, she was found not guilty on the grounds of mental illness: see R v Walicki [2008] NSWSC 777. 3For a period from 13 November 2006 to 25 January 2007 Ms Walicki saw a psychiatrist, Dr Yolande Lucire ("the practitioner"), on nine occasions. Thereafter, Ms Walicki ("the patient", referred to in some quotations as Linda or patient A) had contact with her general practitioner, Dr Greenhalgh, and with a clinical psychologist, Ms Sandra Dunn. On 23 April 2007 a tenth consultation was organised by Ms Walicki's father. The practitioner saw Ms Walicki on 3 July 2007 and, briefly, on the morning of 5 July. 4Both the Chief Executive of Justice Health (the agency responsible for providing health services to prisoners) and the President of the Mental Health Review Tribunal (which was responsible for assessing Ms Walicki as a forensic patient) made complaints to the Health Care Complaints Commission ("the Commission") in respect of the practitioner's management of the patient during the period prior to the psychotic attacks. 5After the complaint was made, the Medical Board considered whether it should exercise its powers under s 66 of the Medical Practice Act 1992 (NSW) to suspend the practitioner from practising medicine, or impose conditions on her registration "for the protection of the health or safety of any person or persons ... or if satisfied that the action is otherwise in the public interest": s 66(1). On 12 September 2008, three members of the Board interviewed the practitioner ("the s 66 interview") and imposed conditions on her registration which prevented her treating patients and, in effect, restricted her work to research and preparing medico-legal reports. 6On 31 July 2009, the Commission filed a complaint with the Medical Tribunal under Part 4 of the Medical Practice Act . On 24 August 2010, the Tribunal upheld part of the complaint and made findings of unsatisfactory professional conduct on the part of the practitioner in respect of certain particulars. On 27 August 2010, the Tribunal made orders imposing conditions on the practitioner's registration.

Issues on appeal 7On 1 July 2010, the Medical Practice Act was repealed and replaced by the Health Practitioner Regulation National Law (NSW) , pursuant to the Health Practitioner Regulation Act 2009 (NSW), now known as the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW), as amended by the Health Practitioner Regulation Amendment Act 2010 (NSW) ("the National Law"). The referral to the Tribunal, which "had been started but not completed" under the Medical Practice Act , continued to be dealt with under that Act: National Law, Sch 5A, cl 4(1) and (2). The appeal to this Court, which was commenced after the commencement of the National Law, was governed by the provisions of that Law and not the Medical Practice Act : National Law, Sch 5A, cl 4(3). 8The right of appeal relied upon in the present case and the powers of this Court in determining the appeal are to be found in the following sections of the National Law: " 162 Appeal against Tribunal's decisions and actions [NSW] (1) A person about whom a complaint is referred to the Tribunal, or the complainant, may appeal to the Supreme Court against- (a) a decision of the Tribunal with respect to a point of law; or (b) the exercise of a power by the Tribunal under Subdivision 6 of Division 3. ... 162A Powers of Supreme Court on appeal [NSW] (1) In deciding the appeal, the Supreme Court may- (a) dismiss the appeal; or (b) make the order it thinks proper having regard 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." 9The reference in those provisions to the "Tribunal" is a reference to the Medical Tribunal of New South Wales established under s 165: see s 138, providing definitions for the purposes of Pt 8. However, the effect of cl 4(3) of the transitional provisions (Sch 5A) is that the appeal is to be dealt with "under this law as if the relevant matter had been decided under this Law". The original decision of the Tribunal is thus deemed, in effect, to have been made by the new Tribunal. 10The notice of appeal contained nine grounds, each of which involved a number of particulars: the grounds may be succinctly paraphrased in the following terms: (1) failure by the Tribunal to apply the test of "unsatisfactory conduct" set out in s 36 of the Medical Practice Act (ground 1); (2) errors of law in respect of the findings of unsatisfactory professional conduct in respect of: (a) the events of 23 April 2007 (ground 2); (b) the events of 3 July 2007 (ground 3); (c) the events of 5 July 2007 (ground 4); (3) breach of the rules of procedural fairness in respect of: (a) the conduct of the proceedings generally (grounds 5(a) and (b); (b) in respect of the disciplinary orders made by the Tribunal (grounds 5(c)-(f), 6 and 7); (4) making orders which were beyond the statutory power (ground 8); (5) ordering the practitioner to pay the costs of the proceedings in the Tribunal (ground 9). 11The Commission filed a notice of cross-appeal which also sought to have the orders of the Tribunal set aside, because, in the view of the Commission, the Tribunal had failed to undertake its task of adjudication properly in circumstances where the practitioner did not give evidence and where there were matters which she alone could be expected to explain. In other words, by taking an approach which was erroneous in law, the Tribunal had failed to draw inferences adverse to the practitioner. 12The pleading, if not the content, of the grounds of appeal and cross-appeal gave rise to difficulty, as little attempt was made to identify the decisions of the Tribunal "in point of law", which were under challenge. To the extent that the submissions acknowledged the statutory scheme, they assumed that it was sufficient to identify some form of legal error committed by the Tribunal. The adoption of procedures which failed to comply with the obligation to accord the practitioner procedural fairness was accepted by the Commission as falling within the scope of the right of appeal. Approaching the matter on that basis, it is convenient to deal with the grounds of appeal and cross-appeal under the following headings: (1) failure to accord procedural fairness in respect of the making of orders; (2) making orders which were beyond power; (3) failure to apply the statutory definition of "unsatisfactory professional conduct"; (4) appellant's other challenges to the substantive findings (including failing to give adequate reasons); (5) failure to accord procedural fairness in the conduct of the hearing generally, and (6) failure to apply the principles identified in Jones v Dunkel in respect of the failure of the practitioner to give evidence (and failing to give adequate reasons for not drawing inferences). 13As explained below, the practitioner should succeed on the first and second issues and, accordingly, the orders made by the Tribunal must be set aside. Otherwise, the grounds of appeal and the grounds of cross-appeal are rejected, with the result that the findings of the Tribunal upholding the complaint of unsatisfactory professional conduct in some (but not all) respects must stand, as must the rejection of the complaint of professional misconduct. The cross-appeal must be dismissed. 14There remains a question as to how the matter should proceed so that final orders can be made in respect of the findings adverse to the practitioner. Both parties invited this Court to make appropriate orders in the event that the appeal and cross-appeal were dealt with in the manner identified above. To dispose of the matter, it would be open to the Court to hear such further evidence as the parties wish to present, consider submissions as to the appropriate orders and determine those orders itself. It is desirable that those steps be undertaken expeditiously and directions to facilitate that end are proposed. If at any stage it appears inconvenient or inappropriate for the matter to proceed to conclusion in this Court, it may be necessary to give further consideration to remitting the matter to the Tribunal.

Factual background 15It is convenient to outline briefly the facts, sufficiently to explain the conclusions reached in the Tribunal and the nature of its findings and orders. It is not proposed to deal at this stage with the evidence in relation to particular events; that will be addressed in relation to the grounds of appeal which seek to challenge the specific findings of the Tribunal. 16On 24 October 2006 the patient was admitted to Bankstown Hospital, which she attended with her mother, who reported deteriorating irrational behaviour over the previous two years. At that time the patient was 24 years old and, after a period away from home, was again living in her family home. The hospital records note that the father was a member of the Church of Scientology and was hesitant to have her treated at the hospital. The tentative diagnosis on admission was schizophrenia. 17The event immediately leading to her admission was her belief that she had received a message from God telling her that her grandmother (who was quite well) was about to die, causing her great distress. She left the home and went for a long walk. When she had not returned after three hours, her parents called the police. It appears that police officers arrived as she returned home and she was taken by her mother to the Emergency Department at the hospital for assessment. She was admitted to Banks House (a psychiatric unit at Bankstown Hospital) where she remained until discharged on the order of a Magistrate on 15 November 2006. 18Whilst on day leave from the hospital on 14 November, she had her first consultation with the practitioner, on whom she attended with her father. Following a brief consultation on 14 November, the practitioner wrote a letter to the Magistrate, not supporting her discharge from hospital at that time, but expressing concern that she had been over-medicated and was suffering "a severe adverse reaction" to the neuroleptic drugs which had been administered at the hospital. The letter was sent to Mr Walicki, to be given to the Magistrate, but was not tendered at the hearing. Amongst other things, the letter diagnosed the patient as suffering from akasthisia, a restless condition described by the practitioner as "very dangerous" and identified as a side-effect of the medication. The practitioner stated in the letter that if the patient was "given more medication, she will be sicker for longer". The letter further stated: "She remains psychotic. She has a religious mania - somewhat chronic, which could be schizophrenic. She has not recovered and will not recover on this medication." 19Following her discharge, the practitioner saw the patient several times in 2006. At a fifth consultation, on 19 December 2006 the practitioner prescribed 25mg of Chlorpromazine (Largactil, an anti-psychotic medication), 25mg of Tofranil (an anti-depressant). She was directed to start on a half tablet of Chlorpromazine a day. 20The practitioner saw the patient on a weekly basis through January 2007, the last (ninth) consultation being on 25 January 2007. The practitioner's clinical notes for that day gave no indication that consultations would not continue. Nor was there any other clinical record made by the practitioner until the tenth consultation which occurred on 23 April 2007. 21In the course of the s 66 interview (Tcpt, p 28), the practitioner was asked by the Medical Board if she continued to see the patient until April and responded: "No. It was the end of January when she said she was 70% better, and her father said to me - this was what really caused me to withdraw - and I have had other information since, which puts my records into, sort of, a slightly different light. My records are bad. She had said she's 70% better, and her father said, 'I have looked up Chlorpromazine,' wherever he does, 'and I am not going to allow her to take it; ...'. She had told me she was taking 25mg. Her father said, 'I have reduced them to three-quarters of the 25mg', and I said, 'Look, I don't think you should do that. She will be alright if she keeps taking it,' and at that stage I just didn't make another appointment for her." 22The practitioner also explained to the Medical Board how the next consultation occurred in April 2007 (at that stage she was of the view that it occurred on 2 April, but by the time the matter was before the Tribunal, it appears to have been common ground that the tenth consultation occurred on 23 April 2007). She stated (Tcpt, p 31): "That followed a phone call from the father who was in great distress, saying that, 'She's seeing a psychologist who is turning her against us.' This was a matter of concern to me because - and whatever one thought of the family unit I didn't want internal problems. There was already a problem between Linda and her mother because her mother had hospitalised her - well, she saw that her mother had hospitalised her and the hospitalisation had been difficult for her. I was concerned about that. I said, 'Is she taking the Chlorpromazine', 'No.' I can't remember now if I spoke to Linda - I think I did - and I said, 'OK, come in again.' So she came in again. She had relapsed and I discussed with her the Chlorpromazine again. She said, 'I reject drugs.' I just said, 'Would you want to go to hospital?' She rejected that." 23During May and early June the patient continued to see the psychologist, Ms Dunn, and her general practitioner, Dr Greenhalgh. On 21 June Dr Greenhalgh recorded a telephone conversation with Ms Dunn noting that the patient's mood had deteriorated. Dr Greenhalgh spoke to Ms Dunn about the patient taking the anti-depressant Tofranil. 24On 28 June the patient (with her mother) had a consultation with Dr Greenhalgh during which she said she had not started on Tofranil but had taken a herbal preparation provided by her father. Under "Reason for visit" Dr Greenhalgh had recorded "Depression - major". Her note continued: "Linda is unwell with major depression. She is at risk of developing psychotic symptoms again if not treated. This has been explained to herself and her mum. Linda has been advised to stop the herbal prep and start Tofranil ... Message left for Dr Lucire to ring me - Linda has been in touch with her twice this week - I want to ask her about starting Largactil also. ... Dr Luicre [sic] returned my call - can't see her this week but Linda is in touch with her by phone - agrees starts Tofranil - low dose - even 10mg. May use Largactil also, says she has never been able to get Linda to start it before - will see Linda next week. ... Management : Start 10mg Tofranil tomorrow night Sue is with Linda 24/7 Hospital if deteriorates." 25On 30 June 2007 the patient again saw Dr Greenhalgh with her mother. The clinical notes stated that she had not started Tofranil and continued under the heading "Management": "I have stressed again the need to commence medication, Linda is depressed and at risk of psychosis (early signs now). No current risk of self-harm. She needs review by her psychiatrist. Largactil half x 25mg has been recommended for sleep and intrusive thoughts, once commenced, start Tofranil 10mg nocte. To see Dr Lucire this week as a priority ...." 26On Monday, 2 July 2007 the patient saw Dr Kwong, a colleague of Dr Greenhalgh. He noted that the patient had started Largactil only the night before but noted a "partial good effect - calming down". Under "Reason for visit" Dr Kwong recorded: "Anxiety. ? due to psychosis Try taking the other half a Largactil Supervise closely do not leave alone." 27The eleventh consultation with the practitioner took place on Tuesday, July 3. On the afternoon of 3 July, Mrs Walicki rang the clinical psychologist and asked to speak to Ms Dunn, who was not in her office. She was anxious to speak to her because she said her daughter was "not well". A colleague who took the call spoke to Ms Dunn on her mobile telephone and relayed to Mrs Walicki a message "to take Linda to the hospital, her doctor or her psychiatrist". According to Mrs Walicki, the patient was "panicky and thought she was having a heart attack" on Monday July 2, when they saw Dr Kwong. Although she had an appointment for her daughter to see the practitioner on the following afternoon, Mrs Walicki rang Ms Dunn on the afternoon of July 2. During the consultation with the practitioner on the afternoon of Tuesday, 3 July, at which both she and her husband (Michael Walicki) were present, Mrs Walicki was asked to describe her daughter's condition. She stated (Tcpt, p 152): "A. Linda thought the building was swaying and she - Michael sat on one side of her, I sat on the other side of her with Linda in the middle, and she was swaying. ... Q. How had she reacted earlier on in the day? What did you perceive? What did you see? A. I can remember ringing Dr Lucire when I think it was one of those days, and I asked her could she please put Linda into care in her area, not our area, and she asked me was I privately insured, and I wasn't privately insured. I wanted Linda out of my care. I could not look after Linda. Q. When do you say this was? A. It was that last week. Q. Your position I think as around 3 July, you were finding it difficult to cope with Linda, who had regressed. Is that right? A. Yes. I found it difficult to cope with Linda full stop." 28The practitioner's clinical notes for 3 July recorded that the patient had consumed Largactil on Sunday night and Monday night (apparently one 25mg tablet on each occasion) and had also taken six pills provided by her father and merely described as "fast oxidisers". Notes of the patient's description of her condition demonstrate a serious deterioration resulting in terror and a sense of impending doom. The notes also record her saying, "All this means horrible things are going to happen. - I wish they weren't true. I can't cope anymore I'm scared of terrorism." The practitioner recorded, "told father I had enough trouble coping with side effects of psych drugs, that I did not [want?] his drugs or interactions so please stop." The practitioner prescribed Temazepam 10mg, to help her sleep and Valium 5mg, to calm her down, as needed. Although the notes do not record such advice, it appears from other evidence that she also told her to discontinue the Largactil. 29Whether any diagnosis was provided on 3 July is unclear. The notes, following the advice to the father to stop giving her the pills he had obtained independently, contain the following handwritten entries: "Schiz? Bi-polar? Religious mania ." 30In her written statement, Mrs Walicki said: "On 3 July we saw Dr Lucire who told us that day that Linda didn't have schizophrenia, just depression and panic disorder. Dr Lucire reviewed the possibility that Linda might have schizophrenia, bi-polar or manic depression and I recall her clearly stating that Linda had none of these conditions." 31The events from the evening of 4 July to the day of the killings, is described by Grove J in his judgment in the criminal proceedings. "4. In the early part of that evening the accused was having what family members described as panic attacks and was turning "towards aggression". She appeared unwilling to eat and her mother fed her. She oscillated between requesting to be taken to hospital and then proclaiming that she was not sick. At about 8 pm she left the house and her father, sister Kathryn and brother Peter followed and accompanied her. She simply walked up and down the street in which the residence was located. 5. Whilst walking she spoke "a lot of weird stuff". She pointed to a spot on the ground and said that they had to stay there and hold hands for 30 minutes. A suggestion that she sit down on a bench was met with a response that it was not safe. She expressed a conviction that someone was behind a fence waiting to "get us". Quite unreferenced to any discussion she commenced to make enquiries about the workings of guns. Her father responded in order to try and divert her attention. She was reluctant to return to the house because "people were going to come and steal her and kill us all". 6. Eventually she was persuaded to go inside and she was later observed to be violently striking the keyboard of her computer. 7. Sometime after midnight she came into Peter's bedroom, wakened him and demanded to know the password for his email account. His failure to respond immediately was met with an outburst of uncharacteristically vulgar language. The parents came to the scene but the accused again tried to leave the house but was restrained and relieved of keys which she had obtained. She continued screaming and uttering obscenities. 8. The accused's mother persuaded her to take some medication (Valium) and after this she appeared to calm down but she did not seem to sleep." 32On the morning of 5 July, over protests that she did not wish to go, the patient's parents managed to coax her into the family car and drive her to Edgecliff, to see the practitioner at the arranged time. It appears that they arrived almost an hour early for the intended 12.30 appointment. The patient was still unwell and expressed fear that there was a bomb in the car park of the building. She did enter the building and followed her mother into a toilet where she started to beat her with her fists. The practitioner, who was seeing another patient, was called out of her room, apparently as the patient was fleeing the building. The practitioner followed the patient out into the street and eventually persuaded her to sit with her at the back of a nearby coffee shop. After a short period (perhaps 15 minutes) the practitioner was satisfied that the patient had calmed down, left her in the coffee shop and returned to tell her parents to take her home and return to see her in the following week. What the practitioner knew, at that stage, of the behaviour on the previous night, or the assault on the mother in the toilet, is unclear. She prepared no record of the events of that day until after she learned of the violent attacks. 33Prior to her visit to the practitioner, Mrs Walicki had telephoned Dr Greenhalgh, whether to describe her daughter's condition or to seek an appointment to see Dr Greenhalgh herself is not entirely clear. Dr Greenhalgh noted in her statement: "On 5 July 2007 I spoke with Sue Walicki on the phone around 10am. She told me that Linda had seen Dr Lucire on Tuesday, 3 July. Sue also told me that Linda was not taking the Largactil as it had given her a 'hangover'. Sue further told me that Dr Lucire had prescribed Linda sleeping tablets and Valium. Sue told me that Linda was seeing Dr Lucire later that day and that Linda had been experiencing panic attacks and thought someone was under the bed trying to kill her. I told Sue that this was more than a panic attack. I emphasised the importance of Linda keeping her appointment with Dr Lucire on this day." 34In her typed notes, Dr Greenhalgh also noted, apparently as part of her advice to Mrs Walicki, in relation to the daughter, "She needs a firm diagnosis and a treatment plan". 35Dr Greenhalgh saw Mrs Walicki at 2pm on the same afternoon, July 5. The note of that consultation was prepared two days later on Saturday, July 7. The note was in the following terms: "Mother presented tearful and distressed after Linda's appt with psychiatrist. Sue reported that Linda had become claustrophobic in the lift to Dr Lucire's office and that when Sue had gone to the toilet prior to the appt Linda had attacked her. Sue had called for help and Dr Lucire came to her aid. Dr Lucire then spent time with Linda at Gloria Jean's coffee shop. I rang Dr [Lucire] while Sue was present. Dr Lucire explained again to me that Linda's parents were Scientologists and that they had chosen her as Linda's psychiatrist because she understood the Scientology view. Dr Lucire recounted the events of the consultation and that she had seen Linda in Gloria Jeans and said that she had asked Linda to come back when she was calmer. She stated that she had said to Linda 'I don't know what's going on in your head but I've a pretty good idea - that God is angry with you and punishing you, is that right?' She said that Linda had nodded. I said I needed to know what her diagnosis and management plan was. She said Linda had panic disorder with obsessive ruminations. She said she had stopped the Largactil on Tues when she saw Linda and had started Valium for the panic attacks. She went on to say that she was very available and would see Linda anytime and that Linda was often in touch with her by phone at night. I asked could she see Linda tomorrow (Friday) and she said couldn't see her Friday but could see her Monday. (I also asked Dr Lucire whether she agreed with the diagnosis at Linda's initial hospitalisation of psychosis. Her reply was that she certainly had had a religious mania) ...." 36Following the appointment, Mrs Walicki returned home and went outside to mow the lawn with her younger daughter Kathryn assisting. The patient and her father remained inside the house. 37It was at that stage that the patient obtained a long bladed knife and inflicted multiple stab wounds on her father, as explained by Grove J in the criminal proceedings at [13]: "13. The [patient] then came out of the house and, in a regression to the language of childhood, said 'Mummy, Mummy, something bad has happened but I don't know what it is, can you come in and have a look'. Susan Walicki entered the house and saw her husband lying on the floor in a pool of blood. As she bent over him the [patient] made a frenzied attack, stabbing her mother in the back with the knife. ... 14. Susan Walicki, although severely injured, managed to evade the [patient] by making her way through a back door and she went to Kathryn who had resumed the lawnmowing. The [patient] came out of the house and started to chase Kathryn who ran inside. The [patient] followed her. ... [The patient] inflicted multiple stab wounds upon Kathryn who died as a result of those wounds." 38The patient's behaviour after this terrible outburst remained bizarre: it is adequately described in the judgment in the criminal proceedings and is not presently relevant.

Complaint and pleadings 39Under the procedure in force in 2007, any person could make a complaint under the Medical Practice Act in relation to a registered medical practitioner. Complaints could be made to the Medical Board or to the Health Care Complaints Commission. The Commission was required to investigate the complaints and deal with them appropriately in accordance with ss 51 and 52 of the Act. In this case, in accordance with general practice, following investigation the Commission formulated a complaint to be referred to the Tribunal. The "Notice of Complaint", upon which the Tribunal conducted its inquiry, was in the form of a Notice that the Tribunal had received a complaint from the Commission in the terms provided. 40The complaint, as set out in the Notice, was in narrative form. It purported to be a single complaint that the practitioner had been guilty of unsatisfactory professional conduct "and/or" professional misconduct in that she had: "i. demonstrated that the knowledge, skill or judgment possessed, or care exercised, by her [in] the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice of medicine; and/or iii. contravened the Medical Practice Regulation 2003." 41There followed a heading "Particulars of Complaint 1" which commenced with the following paragraph: "At all relevant times the practitioner was a specialist psychiatrist. Between November 2006 and 5 July 2007 the practitioner treated a female patient, Patient A. Patient A was admitted to Banks House, the Psychiatric Unit at Bankstown Hospital between 24 October and 15 November 2006. During her admission Patient A was diagnosed as suffering from a psychotic illness, namely schizophrenia. During the period of her treatment of Patient A the practitioner: ...." 42There then followed 16 numbered paragraphs, four of which were entirely general in their terms and the remainder of which related to conduct or omissions on particular occasions, each involving the treatment of the patient. Further, some of the numbered particulars contained sub-paragraphs and, within particular sub-paragraphs, alternative limbs. 43This form of pleading has been commented on by the Court on previous occasions: see Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [27]-[31]. It inevitably gives rise to a degree of uncertainty as to the precise matters relied upon by the complainant and it is impossible to know the parameters of the case to be presented. Furthermore, it is not possible for the Tribunal to deal with such a complaint by finding it proven or otherwise: it can only deal with the case particular by particular. Whether any particular which is upheld constitutes unsatisfactory professional conduct, individually or in combination with other particulars, and whether any such particular constitutes professional misconduct, either individually or in combination with others, must be carefully identified in the findings of the Tribunal. As a result, the findings are likely to be complex, with a further risk that interested parties will not be able to identify readily and with precision what conclusions have been reached by the Tribunal and, where protective orders are made, to which breaches of conduct they relate. 44These concerns were not specifically raised by the practitioner, but they do affect the way in which the appeal needs to be considered. Simply by way of example, there was no suggestion in the course of the appeal that any of the particulars were said to involve "improper or unethical conduct relating to the practice medicine", as alleged in par (ii) of the complaint. Similarly, the only conduct said to contravene the Medical Practice Regulation was that involving the record-keeping of the practitioner. One might have expected the relevant conduct to be identified in the document, followed by a specific assertion as to the manner in which it was said to constitute unsatisfactory professional conduct or professional misconduct. Some of the conduct particularised, when taken in isolation, could not on any view have constituted professional misconduct. 45Failure to formulate the complaint in appropriate terms is not a matter of pedantry or formalism. Imprecision can readily lead to false issues, evidence extending to matters which are not really relied upon and, as already noted, confusion as to the effect of the ultimate orders. These dangers were reduced in the present case by the unusual course taken by the practitioner, who neither gave evidence before the Tribunal, nor called expert evidence in relation to her conduct and treatment of the patient. Further, on the appeal, senior counsel for the practitioner was disinclined to engage, perhaps understandably, with the various detailed sub-paragraphs of some particulars, preferring to address the findings of the Tribunal as broadly involving adverse conclusions with respect to the practitioner's conduct on three particular dates, namely 23 April, 3 July and 5 July 2007. 46It is necessary to set out those particulars of complaint which the Tribunal expressly upheld and characterised as unsatisfactory professional conduct. Such a course is necessary because of the conclusion reached in this judgment that the orders be set aside and other protective orders made, appropriate to the findings. The following particulars are those which were expressly upheld by the Tribunal: "1. Failed to develop a proper and adequate management plan for Patient A. ... 4. Failed to write to Patient A's treating general practitioner/s in relation to her treatment of Patient A [upheld for the period 23 April - 3 July 2007]. 5. Failed to document in Patient A's medical records: (a) telephone calls to the practitioner by Patient A's general practitioner on 8 February and 28 June 2007, (b) ... a telephone call Patient A's father made in early April 2007 in which he expressed concern about Patient A's condition .... ... 9. Failed to provide Patient A and/or Patient A's parents with sufficient information to make informed decisions about what action to take in the event Patient A's mental state deteriorated. [No clear finding that this constituted unsatisfactory professional misconduct.] ... 11. On 23 April 2007 the practitioner had a consultation with Patient A at which the practitioner noted that Patient A had suffered a relapse of her psychotic illness. During consultation Patient A told the practitioner that she refused to take the anti-psychotic medication prescribed by the practitioner, Chlorpromazine. The practitioner: (a) failed to institute or recommend any proper or adequate treatment and management plan for Patient A, (b) failed to communicate with Patient A's general practitioner about Patient A' condition and her on-going management .... 12. On 3 July 2007 the practitioner had a consultation with Patient A and her parents. The practitioner: ... (c) ... failed to institute or recommend any proper or adequate treatment and management plan for Patient A, (d) failed to properly consider and/or assess the potential risks associated with Patient A's deteriorating mental health including the risk of harm to Patient A or others, (e) failed to properly consider and/or assess whether Patient A should be admitted to hospital for treatment, either voluntarily or pursuant to a schedule under the Mental Health Act , (f) inappropriately advised Patient A to cease taking her anti-psychotic medication, namely Chlorpromazine. 13. On 5 July 2007 Patient A and her parents attended the practitioner's consulting rooms for an appointment. Patient A became distressed and agitated and the practitioner attended on Patient A outside her rooms and in a nearby coffee shop. The practitioner: (a) failed to obtain a proper or complete history from Patient A's parents of the further deterioration in Patient A's behaviour, mood, condition and/or emotional state since her last consultation on 3 July 2007; ... (c) failed to consider that Patient A was suffering a relapse of her psychotic illness ...; (d) failed to properly consider and/or assess the potential risks associated with Patient A's deteriorating mental health including the risk of harm to Patient A or others, (e) failed to properly consider and/or assess whether Patient A should be admitted to hospital for treatment, either voluntarily or pursuant to a schedule under the Mental Health Act 1990 . 14. On 5 July 2007 after Patient A after her parents' visit, Patient A's general practitioner contacted the practitioner by telephone in relation to Patient A's care. During the telephone call the practitioner: (a) failed to recommend proper or adequate treatment options and/or management plans for Patient A including commencement on anti-psychotic medication, hospital admission, contact with local community mental health or crisis mental health services and/or compulsory treatment options under the Mental Health Act 1990 ...." 47Although particular 1 was stated in general terms, the finding of the Tribunal in that regard was based on its findings with respect to relevant particulars 11-14: Reasons, 24 August 2010, p 68. Accordingly, particular 1 involved no separate or additional element of unsatisfactory conduct. 48On 27 August 2010, the Tribunal delivered further reasons which summarised in part the findings made on 24 August, referred generally to the findings earlier made and concluded that the "unsatisfactory professional conduct was not of a sufficiently serious nature to justify suspension of the practitioner from practising medicine or the removal of the practitioner's name from the Register": at [4]. The Tribunal accordingly held that the conduct was not professional misconduct within the meaning of s 37 of the Medical Practice Act : [5]. At the conclusion of its reasons, it made the following orders: "(1) Pursuant to s 61(1)(c) of the Medical Practice Act 1992 , the following conditions are imposed on the respondent's registration:- a) The practitioner's practice as a medical practitioner is restricted to providing medico-legal reports. b) The practitioner is not to be permitted to treat, manage or advise patients. c) The respondent to authorise Medicare Australia within twenty-eight (28) days hereof to provide any information in its possession concerning the practitioner where such information is sought by the Medical Council of NSW (as successor to the NSW Medical Board) for the monitoring of condition 2(b)). (2) The practitioner to pay the complainant's costs as agreed or assessed." 49Against that background, it is convenient to turn immediately to the procedure adopted with respect to the orders made on 27 August 2010.

Procedural unfairness: making of orders 50The first issue noted at [12] above involved a challenge to the final orders made by the Tribunal on 27 August 2010. Quite separately from any challenge to the factual findings and the characterisation of certain matters as unsatisfactory professional conduct, the practitioner challenged the disciplinary orders made by the Tribunal on the basis of those findings. She asserted that the procedure adopted by the Tribunal precluded any reasonable opportunity for her to tender material and to make submissions in respect of appropriate orders. That challenge should succeed, with the result that the orders made on 27 August 2010 must be set aside. 51The relevant circumstances surrounding the procedure adopted in the Tribunal may be shortly stated. The substantive hearing of the complaint before the full Tribunal commenced on 7 June 2010. Although it is not apparent from the transcript, the parties advised this Court that the Tribunal set the matter down for hearing over five days. At an earlier hearing, directions had been given in relation to the filing of evidence by the practitioner, but none had then been filed and there appears to have been some doubt in the mind of counsel for the Commission as to whether or not the practitioner herself would give evidence. In any event, the five days proved inadequate to complete the hearing and the matter was set down for a further five days, commencing on 9 August 2010. The hearing of the evidence in respect of the complaint was completed on 11 August and oral argument concluded on Friday, August 13. 52In ordinary circumstances, that chronology would not have caused concern. The complication which was perceived in the present case was that the commission of Puckeridge DCJ, the Deputy Chairperson who presided at the hearings of the Tribunal, expired on Monday, 30 August 2010. Rightly or wrongly, his Honour took the view that he could not sit beyond Friday, August 27, which was the day upon final orders were made. 53With commendable expedition, the findings of the Tribunal in respect of each particular of the complaint were handed down in reasons delivered orally by the Deputy Chairperson on 24 August 2010. A transcript of the reasons did not become available to the parties until the late afternoon of Wednesday, August 25. The complaint had been particularised in 31 separate paragraphs and sub-paragraphs. A number of paragraphs had internal limbs, usually conjoined by "and/or". It involves no criticism of the Deputy Chairperson to say that even experienced legal practitioners, having knowledge of the case, would not have found it easy to make an accurate contemporaneous note of the judgment as it was delivered or to relate the findings to the terms of the complaint. Without attempting arithmetical precision, suffice it to say that approximately half of the particulars were found proven and half dismissed. Of those which were upheld, some were capable of being characterised as more serious than others and there was arguably a degree of overlap, or even repetition. 54Following delivery of the judgment, there was discussion between the Tribunal and counsel as to what steps should follow. It may have been thought when the Tribunal originally adjourned (on 13 August 2010) that the outstanding steps would involve the tender of documentary material and the making of submissions in relation to the orders which would be considered appropriate in the event of any adverse findings. The Commission had put the complaint before the Tribunal on the basis that some particulars were themselves sufficiently serious to constitute professional misconduct, whereas others, taken individually might not be so characterised, but taken cumulatively could constitute professional misconduct. Accordingly, the reasons delivered on 24 August 2010 made no finding in respect of the more serious complaint of professional misconduct. It was, to a significant extent, that matter which caused the subsequent proceeding to miscarry. Both parties wished to present evidence and make submissions in relation to the appropriate protective orders: each appears to have accepted (the Commission doing so expressly) that it would be inappropriate to tender material relevant only to the orders, before the Tribunal had reached a conclusion as to professional misconduct. That reticence on the part of the Commission was entirely appropriate: because professional misconduct is defined, in part, to be unsatisfactory professional conduct of a sufficiently serious nature to justify suspension of the practitioner from practising medicine, or the removal of her name from the Register, there was a risk that to present material relevant only to the appropriate orders might result in contamination of findings with respect to the proper characterisation of the conduct: see Karalasingham at [67]. 55During the hearing on 24 August, at which all four members of the Tribunal were present, senior counsel for the practitioner protested against tender of evidence by the Commission relevant to the protective orders and objected to a procedure which would require the practitioner to make submissions on the appropriate orders before knowing whether any aspect of the complaints constituted professional misconduct. 56Each party made some oral submissions on 24 August in respect of the significance of the findings. On the afternoon of Wednesday, 25 August 2010, the Commission filed written submissions foreshadowing the tender of material and noting the absence of any testimonial material supportive of the practitioner. The written submissions for the practitioner, filed the next day, sought to reserve her position with respect to appropriate protective orders and were restricted to the question whether any conduct was sufficiently serious to warrant a finding of professional misconduct. 57It may be inferred from the submissions made, both orally and in writing, that each party expected an opportunity to tender material and make further submissions on Friday, 27 August 2010. However, when the Tribunal reconvened on that morning, only the Deputy Chairperson was present. He commenced by announcing the finding of the Tribunal that the practitioner's conduct did not constitute professional misconduct and handed down written reasons for that conclusion. His Honour then continued, in terms which brought senior counsel for the practitioner, Mr Paul Roberts SC, immediately to his feet. The following exchange occurred: "DEPUTY CHAIRPERSON: ... The Tribunal makes the following orders in relation to the conditions on the respondent's registration. ROBERTS: We haven't had any opportunity whatsoever about addressing in relation to this. Could we have an opportunity before you hand it up? HIS HONOUR: No, the orders are as made." 58In this Court, the practitioner complained that she had neither had the opportunity to present evidence, nor to make submissions, in respect of the appropriate protective orders. Her solicitor gave evidence that she had available to her on the morning of 27 August 2010 a set of references or testimonials, which were annexed to her affidavit in this Court. She said it was intended that they be tendered to the Tribunal at the hearing. As already noted, no opportunity was provided for that to happen. 59During the hearing on 24 August, counsel for the Commission, Mr Mark Lynch, had clearly been troubled by the procedures proposed by the Tribunal, noting at one point that to tender evidence and make submissions in respect of the protective orders before there had been a finding in respect of professional misconduct would be "putting the cart before the horse": Tcpt, 24/08/10, p 803 (37). That was terminology repeated by senior counsel for the practitioner: Tcpt, p 806 (40). Nevertheless, in this Court the Commission contended that while it may have been inappropriate for the Commission to tender material adverse to the interests of the practitioner before final findings had been made on the complaints, that was not so in respect of testimonial evidence favourable to the practitioner. Accordingly, it was contended that the practitioner had had a reasonable opportunity to tender such material and, like the Commission, had had an opportunity to make submissions in respect of protective orders on alternative bases, knowing the findings which had been made with respect to unsatisfactory professional conduct and adopting alternative assumptions as to whether or not any were held to constitute professional misconduct. She submitted that it would be unfortunate if this Court were to find procedural unfairness in such circumstances as that would require that every disciplinary hearing be conducted in two stages, with a requirement that all findings in respect of a complaint be published before any evidence could be heard or submissions made in respect of appropriate protective orders. 60The suggestion that intervention by the Court in the present matter would carry some general and unfortunate consequences for future hearings in the Tribunal must be rejected. The practitioner calls in aid well-established principles of procedural fairness, the application of which will vary from case to case. Whether a separate hearing will be required in any particular case will depend upon such factors as the number and complexity of the complaints or particulars thereof, the manner in which the case is conducted and the wishes of the parties in respect of further evidence and submissions on protective orders. 61On the other hand, the Commission's submission that procedural fairness merely requires a reasonable opportunity to present a case, rather than presentation of the case, should be accepted. The practitioner did have an opportunity of which she did not avail herself: however, the question is not whether she had any opportunity, but rather whether she had a reasonable opportunity in all the circumstances of the case. This question requires an assessment of practical and strategic considerations and not merely an assessment of abstract possibilities. 62There were two critical features in the present case which demonstrate that the course adopted by the Deputy Chairperson of the Tribunal was procedurally unfair. First, although the complaint before the Tribunal was drafted as a single complaint, in substance and effect there were two separate complaints. One was a complaint of unsatisfactory professional conduct, the other a complaint of professional misconduct. The pleading obscured the substance of the case presented by the Commission; it would have been preferable if the Commission had been required to redraft the complaint. It was no doubt true that each of the multiple particulars was relied upon the Commission as sufficient in itself to support a finding of unsatisfactory professional conduct, although it may be doubted whether some of the particulars, in isolation, could reasonably have warranted that characterisation. However, in respect of the complaint of professional misconduct, it was beyond doubt that many (perhaps most) of the separate items of conduct particularised could not, alone, constitute professional misconduct. Further, it was the Commission's case that such a characterisation could arise in relation to the cumulative effect of the conduct particularised. That approach (not pleaded, but identified in submissions) gave rise to the circumstance in which the Tribunal found itself on 24 August, having upheld some particulars and rejected others. Understandably, it sought submissions as to whether those particulars which had been upheld were said, either individually, or cumulatively, to constitute professional misconduct. 63The findings in respect of that exercise of characterisation were of critical importance to the practitioner. Where a complaint was upheld, the Tribunal had a range of powers available to it, including cautioning or reprimanding the practitioner, ordering her to undergo medical or psychiatric treatment or counselling, imposing conditions on her practice of medicine, ordering that she undertake an educational course, ordering that she report on her medical practice from time to time and ordering that she take advice in relation to the management of her medical practice: Medical Practice Act , s 61(1). There was also a power to impose a fine: s 62. In addition, the Tribunal had the power to suspend a person from practising medicine for a specified period and to direct that a person be deregistered: s 64(1). These more serious orders, however, were only available in the case of a finding (relevantly for present purposes) of professional misconduct: s 64(1)(b). 64The relationship between unsatisfactory professional conduct and professional misconduct has already been referred to, but it is convenient to set out the definition of the latter term as contained in the Medical Practice Act at the relevant time: " 37 Meaning of "professional misconduct" For the purposes of this Act, professional misconduct of a registered medical practitioner means: (a) unsatisfactory professional conduct, or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct, of a sufficiently serious nature to justify suspension of the practitioner from practising medicine or the removal of the practitioner's name from the Register." 65As this Court has noted on previous occasions, the fact that the definition of professional misconduct was framed in terms of the available orders, did not entail the imposition of such a penalty upon a finding of professional misconduct. To say that such a penalty was justified was not to say that it should be imposed, or must be imposed, in the particular circumstances of the case. However, the need to maintain this distinction, gives practical support to the practitioner's submission that she should not have been required to address submissions to the Tribunal on the appropriate orders until the Tribunal had determined whether and in what respect or respects her conduct constituted professional misconduct. 66The second significant factor in assessing the reasonableness of the opportunity afforded to the practitioner to present evidence and address submissions on penalty flows from the fact that both sides wished to present evidence and were ready to do so on Friday, August 27. Each should have been accorded that opportunity; the fact that the practitioner was denied the opportunity involved procedural unfairness of which she is entitled to complain. 67Both in the course of discussion in the Tribunal and in this Court, much was made of the supposed fact that once the Deputy Chairperson reached the age for retirement from the District Court, he could no longer chair the Medical Tribunal, even though he expected to be appointed as an acting judge following his retirement. Whether that view as correct or not was not agitated in this Court, and it is not appropriate to address it. It was not submitted that there was any principle of "necessity", such as may operate in respect of an apprehension of bias, requiring the Tribunal to proceed in the expeditious manner in which it did: cf Laws v Australian Broadcasting Tribunal [1990] HCA 31; 170 CLR 70, at 88-89 (Mason CJ and Brennan J), 96 (Deane J). 68In fact, it appears that a number of factors conspired to deprive the practitioner of procedural fairness with respect to the proper orders, of which the retirement of the Deputy Chairperson was only one. For example, it is arguable that procedural fairness could have been accorded if the full Tribunal had sat on Friday, August 27, and received the further evidence and submissions from the practitioner. This possibility need not be pursued further, nor is it necessary to address the question, noted obliquely in the course of argument in this Court, as to whether the Tribunal was properly constituted for the purpose of making orders on 27 August. It is sufficient to conclude that the disciplinary orders made on that date must be set aside for want of procedural fairness to the practitioner. Consequentially, the order as to costs must also be set aside.

Whether orders beyond power 69As a result of the conclusion just reached, it will be necessary for either the Tribunal or this Court to make orders in place of those which must be set aside. In those circumstances, it is appropriate that the Court rule upon the further submission of the practitioner, namely that the orders made were beyond the power of the Tribunal under s 61 of the Medical Practice Act . Whether the transitional provisions require that this matter be completed by orders made under the Medical Practice Act or under the National Law, the statutory scheme is in either case relevantly identical. 70The orders of the Court are set out at [48] above. They do not permit the practitioner to treat patients in any circumstances or at any time. The only work that may be undertaken as a medical practitioner is the provision of "medico-legal reports". The challenge to that regime is that it operates, in a practical sense, as an order suspending or deregistering the practitioner. However, an order in those terms would have been beyond the power of the Tribunal, absent a finding (which was refused) that she had been guilty of professional misconduct. 71One way of testing this challenge is to inquire whether the preparation of medico-legal reports is part of the practice of medicine undertaken by registered medical practitioners and if so, whether it is, in practical terms, a significant part. It may also be tested by inquiring whether it is legally (or practically) necessary to be a registered medical practitioner in order to prepare medico-legal reports. However, because there is no general prohibition on unregistered persons practising medicine, the term "practice of medicine" has not been (and probably is not capable of) precise definition. The Court was taken to no cases in which the concept was discussed. 72An alternative approach is to inquire what constraints should be implied (in the absence of express language) on the power to impose conditions on a practitioner's registration, for the purposes of s 61(1)(c). A relevant limitation is that conditions not be imposed which, either in their terms or in their practical effects, are equivalent to the suspension or deregistration of the practitioner. The reason for such an implication is readily apparent: an express order to that effect requires the Tribunal to be satisfied as to one of the elements identified in s 64(1), in the absence of which such an order cannot be made. It must be implied, therefore, that where the Tribunal is satisfied only that there has been unsatisfactory professional conduct, it cannot impose conditions which have the effect of an order of suspension or deregistration. 73It may be accepted that the preparation of medico-legal reports forms a significant part of the practice of medicine, particularly for specialists. Further, it may be assumed that for some practitioners it forms a large part, or even the bulk, of their medical practice; nevertheless, they remain entitled to treat patients and the value of their medico-legal reports will depend to a significant extent both on their experience in treating patients and their authority to do so. It is difficult to see how a medical practitioner, particularly a psychiatrist, who is not permitted to treat, manage or advise patients, could be thought by those who commission medico-legal reports to be qualified to provide such reports or to be capable of preparing reports that would carry significant weight with a court. To remove a practitioner's ability to treat patients is tantamount to suspension or deregistration. The fact that the practitioner remains able to undertake some tasks, the authority for which derives from the status of being a registered medical practitioner, does not undermine that conclusion. Accordingly, the condition imposed was beyond the power of the Tribunal, absent a finding of professional misconduct (or another ground for suspending or deregistering a practitioner). 74Viewed from a different perspective, there was a manifest inconsistency between the conclusion that the conduct was not sufficiently serious to justify suspension or deregistration and the conclusion that the practitioner could not be trusted to treat patients at all: compare Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 639F (Gleeson CJ, Meagher and Handley JJA). 75It does not follow that every condition imposed, as being reasonably necessary for the protection of a practitioner's patients, necessarily demonstrates that the practitioner cannot be trusted in relation to a fundamental aspect of proper professional conduct: see Health Care Complaints Commission v Wingate [2007] NSWCA 326; 70 NSWLR 323 at [61]-[62]. Nevertheless, it is difficult to see how any other conclusion could be reached in respect of a condition that a practitioner not treat any patients at all in any circumstances. Nor does the fact (if it be a fact), that the practitioner does not intend to treat patients, undermine that conclusion. The condition formulated by the Tribunal was, in a practical sense, inconsistent with its conclusion that the practitioner was not guilty of professional misconduct. Indeed, the brief reasoning of the Tribunal in rejecting a finding of professional misconduct suggests that the Tribunal may not have kept clearly in mind the distinction between conduct of a sufficiently serious nature to justify suspension or deregistration, and circumstances where, despite the fact that the finding of professional misconduct may properly be made, a lesser protective order may be thought appropriate: see Karalasingham (above at [43]), at [67]. 76While the Commission sought, by its cross-appeal, to challenge the findings of the Tribunal and thus, no doubt, to reopen the possibility that the practitioner's conduct constituted professional misconduct, it did not seek to reach that conclusion based on any apparent inconsistency between the conditions imposed by the Tribunal and the failure of the Tribunal to find professional misconduct. On the contrary, the Commission submitted that the conditions were appropriate, based on a finding of unsatisfactory professional conduct. 77Because the condition preventing the practitioner treating, managing or advising patients was beyond power, all three interlinked conditions imposed by the Tribunal would need to be set aside. This provides an independent route to the same conclusion as that arrived at above with respect to the challenge based on want of procedural fairness.

Failure to apply the statutory definition of "unsatisfactory professional conduct" 78At the relevant time, the definition of "unsatisfactory professional conduct" in the Medical Practice Act had 14 subcategories. Although the phrase is said to "include" each of those different categories, there is no reason to suppose that other forms of conduct, not falling within any of those categories, may also constitute unsatisfactory professional conduct, particularly as the final category is open-ended, referring to any other "improper or unethical conduct relating to the practice or purported practice of medicine": s 36(1)(m). The relevant category for present purposes is the first, which appeared in s 36(1) in the following terms (see now s 139B(1)(a) of the National Law): "(a) Conduct significantly below reasonable standard Any conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience." 79In written submissions, the practitioner suggested, in somewhat muted terms, that the Tribunal had failed to apply the correct legal test. The claim was raised as part of more general challenges to the principal adverse findings. In the course of oral argument, the challenge obtained far greater attention and clarity. It raised more clearly than the other grounds an issue as to whether the Tribunal erroneously decided a point of law. Despite that, the practitioner encountered difficulty in identifying such an error. 80The first point made by the practitioner was that the Tribunal's reasons referred to departures from "accepted psychiatric standards", which, it was submitted, was not the statutory test. Secondly, it was said that although the two experts called by the Commission, Drs Jurd and Reddan, both experienced psychiatrists, reached conclusions in terms of the statutory language, they did so in circumstances which could not properly have led to the findings made by the Tribunal. 81On neither basis can the practitioner 's submissions be accepted. First, the complaint, the terms of which were referred to in the early pages of the judgment, adopted the statutory test of unsatisfactory professional conduct. Secondly, as the Tribunal noted, the opinion of Dr Jurd in relation to the failure to prescribe anti-psychotics (Reasons, p 47Q) and in relation to the failure to hospitalise (Reasons, p 54D), and the evidence of Dr Reddan and Dr Jurd in respect of the failure to hospitalise on 5 July, used language almost identical to the statutory definition: (Reasons, p 67 N and S). These expressions, adopted by the Tribunal, cannot be disregarded. Thirdly, Dr Reddan expressly used the statutory language on a number of occasions in her report. 82On other occasions, it is true that the Tribunal referred to "accepted standards in psychiatry" (p 35L) and "accepted psychiatric practice" (p 41D and in the conclusions, Reasons pp 58J and 63T). Nevertheless, criticism of the Tribunal in this respect is without substance. Reference in the statute to a standard "reasonably expected" of a practitioner of a particular level of training or experience, is clearly an objective standard to be judged according to the standards of the profession generally. Such standards may appropriately be identified by reference to "accepted psychiatric practice". 83Two further points should be made in this regard. First, this was not a case in which the practitioner sought to justify her conduct by reference to some different standard adopted by a respectable minority of the profession. Accordingly, while the experts called by the Commission were cross-examined as to what should properly have been done in particular circumstances, there was no doubt about the reference point, namely psychiatric practice generally accepted by reputable and experienced psychiatrists. Although the Commission appeared to anticipate that the practitioner would seek to justify her treatment on the basis that anti-psychotic drugs generally did more harm than good and that hospitalisation would only lead to over-administration of drugs with adverse consequences for the patient, that course was not followed: the practitioner did not give evidence to that effect; she did not call expert evidence to support such a view, nor did she seek to cross-examine the Commission's experts as to the validity of such a view. Matters of principle which may have underlain accepted psychiatric practice were therefore not under challenge. 84Secondly, it may be noted that Dr Jurd referred on occasion to his level of disapproval of particular conduct - including "strong criticism" at pp 34M, 47T and 54E. Dr Reddan also used such language, referred to in the reasons of the Tribunal at p 67N. At a time when there was no lesser standard, analogous to unsatisfactory professional conduct, and the test was "infamous conduct", it was necessary to establish "such breach of the written or unwritten rules of the profession as would reasonably incur the strong reprobation of professional brethren of good repute and competence": see Qidwai v Brown [1984] 1 NSWLR 100 at 105C (Priestley JA). Under the Medical Practitioners Act 1938 (NSW), as in force when Qidwai was decided, the test was "misconduct in a professional respect" which, it was held in Qidwai , required "asking whether it was in such breach of standards accepted by the medical profession in this State as would reasonably incur strong reprobation of fellow practitioners of good repute and competence": p 106G. When the somewhat archaic statutory language was replaced with the more contemporary concept of "professional misconduct", the language of moral obloquy was also abandoned and peers expressed their views in terms of strong criticism, rather than "strong reprobation". Whether such language in the reports was intended to imply sufficiently serious conduct to warrant a finding of professional misconduct is unclear: it was, in any event, sufficiently adverse to support a conclusion of departure from reasonably expected standards, so as to warrant a finding of unsatisfactory professional conduct. 85In similar vein, Dr Jurd referred in his evidence to the views of "the vast majority of my colleagues": Tcpt, p 508(10). That language was also reminiscent of a time when experts in disciplinary proceedings were invited to express views held not only by themselves, but by their peers in good standing. Such an approach is not foreclosed by the present statutory formula, which adopts an objective test of a standard applied by the relevant category of professionals. The practitioner 's suggestion that Dr Jurd (and therefore the Tribunal in assenting to his views) applied a test which was "clearly not the correct test" must be rejected. 86The second limb of the practitioner 's challenge to the test applied by the Tribunal required a review of the expert evidence in order to reach the conclusion that it did not support the findings, assuming the correct test was adopted. However, that exercise also failed. In order to demonstrate error in point of law, the practitioner had to show that the Tribunal in effect decided that there was evidence capable of supporting such a finding, when in fact there was not. (That the Tribunal did not approach the matter in this way, by identifying a question of law for the Deputy Chairperson to determine before addressing the evidence on the merits, is not necessarily fatal to the practitioner 's case, although an implication to that effect is necessary to bring the ground of appeal within the statutory language.) 87The practitioner accepted that the experts' frame of reference for each adverse finding provided support for the conclusions reached by the Tribunal, but argued that either the report itself was deficient (in the case of Dr Jurd) or the view was qualified (in the case of Dr Reddan and, on some points, in the case of Dr Jurd) in the course of cross-examination. 88In respect of the inadequacy of Dr Jurd's report, it was said that he expressed opinions in respect of particular conduct without giving the reasoning process by which he reached those conclusions. While that may have provided a basis for objecting to the admission of the report (although the Evidence Act did not apply to the proceedings before the Tribunal), once the report was before the Tribunal, it constituted evidence upon which the Tribunal could make findings. (No challenge was raised to rulings on admissibility.) By the time it came to take that course, Dr Jurd's view in respect of various opinions had indeed been explored in the course of oral testimony. Further, to the extent that either expert qualified his or her answers in the course of testimony, the effect of the qualifications was entirely a matter for the Tribunal to assess. They were not, it appears, expressly invited to accept that the conclusions expressed in their reports did not stand. Accordingly, there was no basis to submit, nor did the practitioner seek to allege, that there was no evidence or other relevant material capable of supporting the finding of the Tribunal. 89Had there been a ground of appeal in those terms, it might have been necessary to consider how such a ground would operate in circumstances where the missing material did not relate to matters of primary fact, but to the inferences to be drawn from the primary facts by experts, before a Tribunal which itself contains persons having relevant specialist expertise. The respondent may have been seeking to make a related point in referring to the passage in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272 where, adopting the language of the Full Court of the Federal Court in Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287, the joint judgment stated: "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error." 90These matters need not be pursued further: suffice it to say that the practitioner failed to establish that the Tribunal, in making findings of unsatisfactory professional conduct, did not apply the statutory test then contained in s 36 of the Medical Practice Act .

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.

Procedural unfairness in conduct of hearing 113The complaint about the conduct of the hearing before the Tribunal was set out in ground 5 in the following terms: "5. The Tribunal erred in law in failing to accord the Appellant procedural fairness, in that it: a) permitted the Respondent to: i) call witnesses as to expert opinion based on assumptions of fact which were incorrect and outside the scope of the Complaint; ii) make submissions to the Tribunal outside the scope of the Complaint, iii) make submissions to the Tribunal reversing the onus of proof; iv) call evidence outside the bounds of the Complaint; v) make inappropriate criticism of the Appellant's decision not to give evidence before the Tribunal; vi) make inappropriate, unfounded and prejudicial remarks about the Appellant's veracity, character and responsibility for the tragic actions of patient A; b) in making its findings, the Tribunal wrongly took into account some or all of the matters referred to in a) above." 114The substance of these complaints revolved around two factors: first, an application to amend the complaint on the first day of the hearing; secondly, the material which was given to the experts proved incomplete. There was a further underlying element, namely that at the opening of hearing, it was not known to the Commission (or the Tribunal) whether the practitioner would give evidence. She had not filed a statement in accordance with directions, but no doubt there remained a possibility that she would be permitted to give evidence, if she sought to, despite that omission. 115The substance of the proposed amendment to the complaint was an allegation that the practitioner "held and acted upon rigid views as to the inappropriateness of anti-psychotic and anti-depressant medication, thereby jeopardising the safe treatment of mentally ill patients under her care". 116The proposed amendment was rejected: Tcpt, 07/06/10, p 30 and separate reasons given by the Deputy Chairperson. Needless to say, the practitioner did not complain about the rejection of further "particulars", the particulars of the original claim being limited to those numbered 1-14. The gravamen of the ground of appeal in this respect was that the Commission continued to refer to the "allegedly inadequate dosages of drugs prescribed by" the practitioner and to her "unorthodox views on medication". There was also, it was asserted, continued reference to other disciplinary matters. These references were said to be grossly unfair and improper. 117While the written submissions did not condescend to details of these references in the transcript, context was critical. For example, both parties sought to rely in the course of hearing on statements made by the practitioner to the Medical Board in the s 66 interview. In the course of that interview, there was discussion of the fact that the practitioner had been the subject of a Professional Standards Committee inquiry which was occurring partly contemporaneously with her treatment of the patient. It appears that members of the Board were concerned that the inquiry might have affected her professional judgment. Further, so far as her views on medication were concerned, it was an inherent part of the Commission's case that she failed to prescribe, or prescribe adequate dosages of, anti-psychotic drugs at appropriate times. In the absence of evidence from the practitioner, the reasons for such conduct were a matter of speculation; on the other hand, there were various statements by the practitioner which were in evidence from which certain inferences could be drawn. The refusal of leave to amend the complaint to include the specific reference to those inferences, did not mean that they were irrelevant, nor that reference to them thereafter was improper. 118Ultimately, however, this ground of challenge must fail in the absence of any suggestion before the Tribunal that the proceedings had miscarried or were in the process of miscarrying and that the matter should be recommenced before a differently reconstituted Tribunal. There was no decision of the Tribunal, express or implied, on a point of law in this regard. Had the matter been raised pursuant to proceedings under s 69 of the Supreme Court Act 1970 (NSW) (for judicial review) it would probably have been rejected. 119The second broad basis of challenge was that the material provided to the experts was flawed in that it included "dismissed prior complaints and second or third hand hearsay allegations, not part of the complaint". The submissions acknowledged that the defects in the material were corrected in the course of the hearing, but it was said that such a process was unfair because the experts were already "committed" to their criticisms of the practitioner. 120The tender of the letter to Dr Stephen Jurd, psychiatrist, seeking an opinion and his opinion were identified as part of the tender material by the Commission on the opening day of the hearing: Tcpt, p 51. At that point, senior counsel for the practitioner said (Tcpt, p 52): "We don't object to either the letter or its opinions, but we point out that we disagree with many of the matters that are contained as background and chronology, simply matters of fact upon which the opinion is based. In due course, of course, we will be saying in so far as Dr Jurd expresses an opinion, it's based upon the assumption of these matters being correct - many of them are incorrect - and there are many matters of relevant practice which are omitted. We just note that, your Honour. This will be the same also in Dr Jill [Reddan's] report, in so far as it purports to contain a chronology that is faulty and a lot of assumptions that are wrong ...." 121Further objection was taken to a second report of Dr Jurd, answering a series of questions as to the level of his disapproval of the practitioner's conduct. That objection was based on the form of the report, which did not provide explanations of the reasons for his opinions: Tcpt, p 89-90. The report was admitted and no challenge is taken to that ruling. No further complaint appears to have been made before Dr Jurd gave oral testimony: Tcpt, p 299. 122In the case of Dr Reddan, a further application was made immediately prior to her being called, seeking to have her evidence adjourned so that she could be given a copy of the complaint as it was before the Tribunal and a transcript of the proceedings to date: Tcpt, 11/06/2010, p 320. The Tribunal was told that Dr Reddan had in fact been advised of the changes to the complaint and had been provided with the evidence which she had read: Tcpt, p 323. Her evidence was allowed to proceed and no challenge is made to that ruling. 123In the circumstances thus appearing, the practitioner has not made good her challenge of procedural unfairness alleged in respect of the proceedings prior to the Tribunal's findings of 24 August 2010.

Cross-appeal: failure of practitioner to give evidence 124The Commission also challenged the findings of the Tribunal, on the basis that the Tribunal had declined to draw inferences adverse to the practitioner in circumstances where differing inferences were available, and the practitioner had not sought to justify her conduct by giving evidence before the Tribunal. The Commission sought to establish two propositions, namely that: (a) the Tribunal erred in its view that it was not entitled to draw adverse inferences from the failure of the practitioner to give evidence, and (b) there was an affirmative obligation to draw such inferences. 125The first limb of the argument requires consideration of whether the privilege against giving evidence that may expose the person to a civil penalty applies to a medical practitioner in respect of disciplinary proceedings in the Medical Tribunal. 126The Commission put forward a careful analysis as to the circumstances in which inferences can properly be drawn against a practitioner who fails to provide an explanation of his or her conduct. The Commission submitted that, whatever the precise situation in respect of a medical practitioner facing disciplinary proceedings, in terms of any positive obligation to provide an explanation, the situation cannot be overstated by equating it with the position of an accused who failed to give evidence in a criminal trial. The primary principle in criminal proceedings, explained in Azzopardi v The Queen [2001] HCA 25; 205 CLR 50 (a principle often identified by reference to an earlier decision in which it was explicated, namely Weissensteiner v The Queen [1993] HCA 65; 178 CLR 217), is that the judge may advise a jury that it can more safely draw an inference adverse to the accused from proven facts where there are facts additional to those revealed by other evidence, which were known only to the accused but not provided by him: at [60]-[61] and [64]-[68]. In some cases it may be necessary to explore the concept of "additional facts". Facts may often be inferred from evidence and, indeed, the purpose of the direction is to permit the jury to infer such facts in circumstances where the prosecution evidence may not necessarily bear the full weight required by the criminal burden of proof. For present purposes it is sufficient to treat the inference as available where an explanation of matters revealed by other evidence falls peculiarly within the knowledge of the practitioner. 127For the purposes of a criminal trial, the Court in Azzopardi preferred a direction framed in terms of the failure of the accused to "offer an explanation" rather than his or her failure to give evidence. In Council of the New South Wales Bar Association v Power [2008] NSWCA 135; 71 NSWLR 451, Hodgson JA (with whom Beazley and McColl JJA agreed) noted that an explanation could be proffered in disciplinary proceedings without the practitioner (in that case a barrister) entering the witness box: at [28]. 128It was further held in Azzopardi that it should be made clear to a jury, and is therefore relevant to the obligations of the Tribunal, that it need not draw an adverse inference in the absence of a relevant explanation: see Azzopardi at [67]. The Tribunal would thus be entitled to take into account the circumstances in which the explanation was not forthcoming and would also be entitled to bear in mind the principle that the burden remained on the Commission to establish affirmatively the facts and inferences required to support the complaint. 129The Commission separately submitted that there was a professional obligation on the practitioner to give evidence to the Tribunal as to her conduct, which duty was not fulfilled in the present case. There is an apparent tension between any such professional obligation and the privilege against self-incrimination or against rendering oneself liable to a civil penalty. In Power , Hodgson JA stated [28]: "Furthermore, the reasons said to justify his not giving evidence have to be considered alongside the obligation of candour .... In my opinion, this obligation of candour should not be overridden by a right to silence to any greater extent than is strictly required by that right." 130This tension was also discussed in relation to medical practitioners in Wingate (referred to at [75] above) at [42]-[49], in a passage quoted without disapproval in Power , at [16]. 131In New South Wales Bar Association v Meakes [2006] NSWCA 340, Tobias JA (with whom Bryson JA and I agreed) stated that the refusal of the practitioner to give evidence "should have been the subject of harsh criticism by the Tribunal": at [77]. His Honour further referred to his failure to give sworn evidence as "inexcusable": at [78]. These statements suggest that, at least in the case of a legal practitioner, there is an obligation to give evidence, although the availability of sanctions for failing to do so is less clearly identified. In Power , adopting the approach discussed in Azzopardi , Hodgson JA said that the principles stated in Meakes "may have been expressed too sweepingly": at [26]. However, his Honour did not need to determine that question; similarly, the full extent of any equivalent principle applicable to medical practitioners was not determined in Wingate . As will be seen below, neither is it necessary to take the matter further in the present case. 132First, the conclusion which follows from this review of authority is that there is no support for the proposition that a specialist Tribunal (whether a jury or a disciplinary Tribunal) is obliged to draw adverse inferences in the absence of an explanation from the respondent. Such an obligation (at least as expressed in such absolute terms) would be inconsistent with the entitlement of the Tribunal to take into account the circumstances in which the failure to offer an explanation arose, including the importance of the matter in the proceedings and the potential adverse consequences for the practitioner of failing to proffer an available explanation. 133Secondly, the Commission needed to demonstrate that the Tribunal had in fact held that it was not able to draw adverse inferences, as a matter of law, as distinct from declining to draw such inferences in all the circumstances. 134Thirdly, to demonstrate that any such error was material, it was necessary for the Commission to identify the kind of inferences which it sought to have the Tribunal draw, which were not properly considered. 135Although the Commission drew attention to a number of passages in the Tribunal's reasons where the Tribunal noted difficulties created for the fact-finding process by the failure of the practitioner to provide explanations, the Commission was generally not able to identify precise inferences which should have been drawn. For example, the clinical notes of the practitioner were unclear in some respects and appeared in part to have been copied, so that there were two sets of clinical notes which were not identical. These facts were noted by the Tribunal in its reasons at pp 9, 10 and 15. The Tribunal also noted that the notes were originally recorded in exercise books, from which they were later extracted, the exercise books themselves not being produced to the Tribunal. 136Where some explanation was forthcoming from the practitioner, by way of a statement in a letter from her solicitors to the Commission, the Tribunal treated such material as having probative value, at least in some cases. For example, the Tribunal accepted that the patient telephoned the practitioner in late June 2007. There was no clinical record of the telephone call and there was an issue as to whether the practitioner was in breach of the Medical Practice Regulation in failing to record the conversation. Such a breach would only arise if the practitioner had received information relevant to the diagnosis for treatment of the patient: Medical Practice Regulation 2003 (NSW), Sch 2, cl (2)(a). The Tribunal held it was "unable ... to find whether or not the practitioner received information from the telephone call relevant to the diagnosis and treatment of the patient" and therefore was not satisfied that there had been a breach of the Regulation: Reasons, p 25. Similarly, in the absence of any management plan for the treatment of the patient, the Tribunal was unable to come to any firm conclusion as to why no further consultation was arranged following that on 25 January 2007: Reasons, p 10. What inference the Commission thought the Tribunal should have drawn was not identified. 137In discussing the consultation of 3 July 2007, the Tribunal referred to inconsistencies in the clinical notes as to when the patient commenced taking Chlorpromazine. The notes indicated that she commenced Chlorpromazine either on the proceeding Friday or Sunday: presumably different information was provided at different times (or by different persons) during the consultation. Although the Commission noted the Tribunal's statement that it wished the practitioner to clarify the matter (Reasons, p 40), it is not clear what inference the Commission sought to have the Tribunal draw in the absence of clarification. Nor does it appear that the uncertainty troubled the experts, who were critical of the practitioner's failure to continue the anti-psychotic medication. 138The events of 5 July, preceding the violent attacks, were clearly significant. There was no formal consultation on that day, the practitioner not having persuaded the patient to come to her rooms. Understandably, what took place in the coffee shop was not contemporaneously recorded. On 6 July 2007, the practitioner did, however, add a postscript to her clinical notes, apparently after she had heard of the violent attacks. The Tribunal stated (Reasons, pp 50-51): "The notes ... show that the practitioner considered the patient psychotic. The notes ... say that the patient would not tell her what she was thinking and that the practitioner said she could not do anything if she did not talk to her. These notes contradict to an extent the statement in the letter from [the practitioner's solicitors] of 18 August 2008 that the patient denied any impulses of harm to herself or to others. The Tribunal, in the absence of any evidence from the practitioner, prefers the evidence as contained in the post-script notes said to be on 6 July 2007." 139It may be inferred that the suggestion in the letter from the solicitors that the patient denied any impulse to harm herself or others was understood by the Tribunal to be a self-serving exculpatory statement. Thus, in preferring the note in the postscript, the Tribunal's finding was the alternative less favourable to the practitioner. 140At no stage in the Reasons did the Tribunal deny it was entitled to draw adverse inferences from the practitioner's silence on matters peculiarly within her knowledge. Nor does such an inference manifest itself in the reasoning adopted in respect of particular issues. The clearest example of an adverse inference not being drawn involved the content of the telephone call from the patient in late June. It would have been open to the Tribunal to infer that the communications were of a kind which should have been recorded in accordance with the Regulation. However, the Tribunal was not obliged to reach such a conclusion and its failure to do so does not demonstrate a belief that, as a matter of law, it was not entitled to take such a step. Indeed, the reasoning suggests the contrary, namely that the Tribunal accepted that more than one possibility was open to it. 141For these reasons, the Commission has not established that the Tribunal decided (even implicitly) that it could not, in law, adopt adverse inferences in the absence of any explanation from the practitioner. For this reason, the principal ground raised by the cross-appeal must be rejected: the further issues noted above in respect of the scope of the entitlement to draw adverse inferences need not be addressed. 142Finally, in respect of the cross-appeal, the Commission submitted that if there were uncertainty in respect of the approach adopted by the Commission in relation to the issue it sought to agitate on the cross-appeal, that supported the view that the reasons given by the Tribunal were inadequate and the findings should be set aside on that ground. The Commission emphasised that the issue had been squarely raised by it before the Tribunal and specific reference had been made to the cases, including Weissensteiner . 143In fact the ground articulated in the notice of cross-appeal was directed to a different point. There the Commission asserted that the Tribunal's reasons were "insufficient to disclose what, if any, inferences it drew from [the practitioner's] choice not to give evidence". 144The ground as formulated in the notice of cross-appeal must be rejected. It is clear what inferences the Tribunal drew: the Commission's real complaint is as to the inferences it did not draw. However, a ground in that form cannot succeed unless the Commission were able to identify with some precision the inferences which it says should at least have been considered. Even then, the ground would not identify an error in point of law. 145As reformulated in the course of the hearing, the ground might give rise to an appropriate challenge in point of law if there were a real issue in dispute, which was not addressed, or was resolved without any explanation, against the position taken by the Commission. While it may be accepted that the Commission raised squarely in its submissions before the Tribunal the availability of adverse inferences in circumstances where the practitioner had not given evidence (or otherwise provided an explanation), it does not appear that the legal principles were in dispute nor, as already noted, that the Tribunal rejected the Commission's submissions in that regard. Accordingly, even as reformulated, the challenge in the cross-appeal to the sufficiency of the Tribunal's reasons must fail.

Conclusions 146The challenges by both parties to the findings of the Tribunal with respect to unsatisfactory professional conduct having failed, the findings set out at [46] above must stand. However, as it has been necessary to set aside the orders made by the Tribunal, there is a question as to what further steps should be taken by this Court. 147The right of appeal against the exercise of power by the Tribunal under what was then Pt 4, Div 4 of the Medical Practice Act , was not restricted to an error of law. Further, the powers of this Court (now contained in s 162A of the National Law) permits the Court to "make the order it thinks proper having regard to the merits of the case and the public welfare, and in doing so may exercise one or more of the powers of the Tribunal under this Law". Those powers are now to be found in ss 149-149B, the powers upon a finding of professional misconduct not being available. The available powers include imposing appropriate conditions upon the practitioner's registration, but, in accordance with the principles set out above, those conditions must not be so severe as to constitute a practical suspension or deregistration of the practitioner. 148The possibility that the Court might set aside the orders but not the findings of unsatisfactory professional conduct was raised with the parties in the course of the hearing of the appeal. Counsel for each party joined in inviting the Court to exercise those powers, rather than remit the matter to the Tribunal. There are a number of reasons which favour acceptance of that invitation. First, the practitioner not having given evidence before the Tribunal, the Court is not deprived, as it might be in many cases, of the advantage of hearing such evidence. Secondly, there is the public interest in the expeditious resolution of the proceedings. Thirdly, it is known that the Deputy Chairperson has now retired as a District Court judge and that doubt has been expressed in some quarters as to his ability to sit as a Deputy Chairperson when appointed as an acting judge of the District Court. Those doubts may be groundless, but there is also uncertainty as to the period for which he holds such an appointment (or may continue to hold such an appointment in the future). Similarly, this Court is not informed as to the status or availability of the other members of the Tribunal. In combination, these factors make it desirable for this Court to exercise the disciplinary powers which are available to it and it proposes to take that course, unless that course is likely to involve delay. 149It will, of course, be necessary to allow the parties an opportunity to make submissions in relation to the appropriate orders. Although the findings have not been disturbed, the parties were not in a position to make submissions on that assumption at the original hearing. Each party should have the opportunity it was denied in the Tribunal of putting such material before this Court as it thinks appropriate in relation to that issue. 150The Commission suggested that the practitioner should be restricted to relying in this Court on the material that she proposed to tender to the Tribunal on 27 August 2010. The reason for such a restriction was said to be that she would then be accorded the opportunity which she had been denied on 27 August. 151This submission must be rejected. One problem with the procedure adopted on 27 August was that it provided the practitioner with too short a window in which to marshal her evidence and her submissions. For example, it is commonplace for character referees to be asked to provide references on the basis of the findings made by the Tribunal. At least in some circumstances, a reference provided in full knowledge of the findings made by the Tribunal is likely to be more persuasive than one made in ignorance of such findings. No lengthy period was required, but the period of one day from the time the written reasons became available and the hearing on orders was manifestly insufficient, given the nature of the findings. 152Accordingly, the Court should make the following orders: (1) Allow the appeal in part and set aside the orders made by the Tribunal on 27 August 2010. (2) Otherwise dismiss the appeal so far as it challenges the findings of the Tribunal. (3) Dismiss the cross-appeal. (4) Direct that: (a) within 14 days of the date of these orders - (i) each party file and serve any documentary material it wishes to rely upon in respect of orders in lieu of those set aside; (ii) the Commission file and serve a statement of the orders it seeks; (iii) each party file and serve submissions as to the costs in this Court; (b) within 21 days after delivery of these reasons, the Commission is to provide written submissions in support of the orders proposed; (c) within 28 days of the date of these reasons, the practitioner is to provide written submissions in response to the Commission's submissions (d) approximately 4 weeks after the delivery of these reasons (on a date to be settled with the Associate for Basten JA) - (i) there be a directions hearing before Basten JA; (ii) each party to advise the Court at the hearing whether it wishes to cross-examine any identified witness and make oral submissions; (iii) the practitioner provide (if she wishes) any alternative proposed orders; (iv) if a further oral hearing is proposed, the basis upon which it is sought. 153In relation to the directions, it should be understood that the orders in issue include any proposed order as to the costs of the proceedings in the Tribunal. It should also be understood that any party seeking a further oral hearing will need to persuade the Court, at the directions hearing, that such a course is appropriate: similarly, any party seeking to cross-examine a witness will need to persuade the Court, at the directions hearing, that such a course is appropriate. 154Each party will have an opportunity make submissions (within 14 days) as to an appropriate order as to the costs of the proceedings in the this Court. However, the Commission having failed in respect of its cross-appeal and the practitioner having succeeded in respect of her appeal against the orders of the Tribunal, but not in relation to the findings of the Tribunal, my tentative view is that the Commission should be ordered to pay 75% of the practitioner's costs in this Court. 155SACKVILLE AJA : I agree with the orders proposed by Basten JA and with his Honour's reasons.

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: 20 April 2011