Mahony v Dental Council of NSW

NCAT Occupational|2018-06-14

REASONS FOR DECISION

In New South Wales, complaints against health practitioners may be made either to the Health Care Complaints Commission (HCCC) or to a relevant profession Council: s 144C of the Health Practitioner Regulation National Law (NSW) (the National Law). In this case, a complaint was made against Dr Derek Mahony, a dentist, to the HCCC in 2016. The HCCC then referred the complaint and Dr Mahony's response to the Dental Council of NSW (the Council) in accordance with s 145C(1)(a) of the National Law.
The Dental Council, in turn, pursuant to s 145B(1)(d) of the National Law, referred the complaint to an Assessment Committee for investigation. As a result of that referral, in August 2017, the Assessment Committee, pursuant to s 147D(3)(a), recommended that the complaint be dealt with by way of inquiry at a meeting of the Council. Dr Mahony now seeks to appeal against that recommendation.
A preliminary jurisdictional issue arises. The Dental Council submits that the NSW Civil and Administrative Tribunal (NCAT) does not have jurisdiction to hear Dr Mahony's appeal. Dr Mahony asserts that it has. For the reasons that follow, I have concluded that NCAT does not have jurisdiction. The appeal must therefore be dismissed.

The statutory construction issue

The question therefore is whether the term "Committee" in ss 158 and 158A encompasses both Assessment Committees and Professional Standards Committees, therefore providing Dr Mahony with an avenue of appeal against the Assessment Committee's recommendation, or whether, construed in its statutory context, it refers only to Professional Standards Committees.

The Council's submissions

The Council submitted that, interpreted contextually, the term "Committee" in ss 158 and 158A must be understood as a reference only to Professional Standards Committees for the following reasons.
First, under s 158(1)(a), appeals are allowed against a "finding by a Committee". The Council points out that an Assessment Committee cannot make "findings". Rather, it may "investigate" the complaint (s 147B(1)), require the health practitioner to undergo skills testing (s 147C(2)), or make certain recommendations in a report to the Council (s 147D(1)). This suggests that the sub-section refers only to Professional Standards Committees.
Second, it was argued, the Assessment Committee "may not decide a complaint referred to it other than by settlement by consent": s 147B(4). This provision, it was asserted, in effect prohibits the Assessment Committee from making its own findings in relation to a complaint. This stands in contrast to the powers of the Professional Standards Committee, which may only be exercised if it finds the subject matter of a complaint proven or it is admitted: s 146A(1). Given the powers of the Assessment Committee and the Professional Standards Committee just outlined, the Council submitted that s 158(1)(a) can only apply to the Professional Standards Committee.
Third, s 158(1)(b) makes express reference to the exercise of disciplinary powers by Professional Standards Committees pursuant to Subdivision 3 of Division 3 of Part 8. That subdivision is concerned only with Professional Standards Committees. It has no relevance to Assessment Committees. The Council submitted that this too suggests that the term "Committee" in s 158 relates only to Professional Standards Committees. Section 158(1)(c) also refers to the exercise of powers by the Tribunal List Manager pursuant to Subdivision 3 of Division 3 of Part 8. Again, this has no relevance to Assessment Committees and their activities.
Fourth, s 158(2) concerns how appeals brought under s 158 are to be conducted. The Council noted that "fresh evidence, or evidence in addition to or in substitution for the evidence received at the inquiry, may be given". It argued that the reference to an "inquiry" is a further indicator that s 158 is concerned with appeals in relation only to Professional Standards Committee findings or exercises of power, or those of the Tribunal List Manager. It submitted that while Professional Standards Committees have power to conduct inquiries pursuant to Subdivision 4 of Division 11 of Part 8 and Schedule 5D of the National Law, Assessment Committees conduct "assessments" or "investigations". They do not have power to conduct inquiries. This too suggests that s 158 concerns appeals relating to Professional Standards Committees, not Assessment Committees.
Fifth, s 158(3)(b) provides that, on appeal, the Tribunal may "make any finding or exercise any power the Tribunal could have made or exercised if the complaint had been originally referred to the Tribunal." The Council submitted that the powers available to the Tribunal on referral, which are found in Subdivision 6 of Division 3 of Part 8, are completely different to the powers of an Assessment Committee in Subdivision 4 of Division 3. If a complaint is referred to the Tribunal under s 145B(l)(c) and it is admitted by the registered health practitioner or found proven, it may among other things, caution, reprimand, counsel the practitioner (s 149A), fine the practitioner (s 149B) and suspend or cancel the practitioner's registration (s 149C). These powers are very similar to (but more expansive than) the powers of the Professional Standards Committee to, in certain cases, make orders (s 146B), to fine the registered health practitioner (s 146C) and to recommend suspension or cancellation on grounds of lack of physical or mental capacity (s 146D). The similarity of orders, the Council argued, is another strong contextual reason why "Committee" in s 158 refers only to the Professional Standards Committee. By contrast, the Assessment Committee does not have such powers and its powers of investigation and recommendation do not easily lend themselves to being exercised by the Tribunal.
The Council also submitted that even if the Tribunal finds that the term "Committee" in s 158 is wide enough to encompass a reference to Assessment Committees, it has no jurisdiction to entertain an appeal by Dr Mahony because it does not relate to a finding, an exercise of power under Subdivision 3 of Division 3 of Part 8 by a Committee or the Tribunal List Manager.
In relation to s 158A, which concerns appeals on points of law, the Council also submits that no appeal is available to Dr Mahony against the Assessment Committee's recommendation. It argues, again, the term "Committee", construed contextually and purposively, must be interpreted as referring only to Professional Standards Committees for the following reasons.
First, an appeal under s 158A may be made either during or before the commencement of an "inquiry": s 158A(2). The Assessment Committee does not have power to hold an "inquiry", a power, which is held by Professional Standards Committees.
Second, the Council submits that Assessment Committees do not have the power to make decisions on points of law such as could be the subject of an appeal for the purposes of s 158A(1) or s 158A(2)(a). The Council argues that Assessment Committees cannot decide complaints (other than by settling them by consent). Rather, an Assessment Committee must give a Council a written report about whether or not it is able to effect settlement of the complaint by consent (s 147B(5)), and may provide recommendations in a report to the Council: s 147D(1). None of these exercises of power, the Council submits, can properly be considered decisions on a point of law.
Fourth, by contrast, the Council submits, a Professional Standards Committee may make findings as to whether the subject matter of a complaint has been proved (s 146A), and whether the relevant health practitioner has been guilty of unsatisfactory professional conduct: s 146C(2)(a). These findings, it is argued, are clearly decisions on a point of law that may be appealed under s 158A.
The Council also submits that the fact that an appeal lies from a Council's decision following the recommendation of an Assessment Committee is another contextual suggestion indicating that the term "Committee" in Subdivision 1 of Division 6 of Part 8 should be construed as a reference to a Professional Standards Committee.
It also argues that if the Tribunal is satisfied that "Committee" means Professional Standards Committee in any of the instances in ss 158 and 158A, it should find that that is the meaning of "Committee" throughout all of Subdivision 1 of Division 6 of Part 8.

Dr Mahony's submissions

Dr Mahony submitted that the complaint that is the subject of these proceedings related not to him but to other practitioners in the practice in which he worked. As a result, he argues the referral to the Assessment Committee was inappropriate.
Second, he submitted that the investigation conducted by the Assessment Committee went beyond the issues that were the subject of the complaint. He said that he was neither informed of these additional matters nor given an opportunity to address them.
Third, he argued that in its report to the Council, the Assessment Committee made findings adverse to him. This was demonstrated by the fact that, in relation to certain matters it investigated, the Committee used the phrases "we have found…" and "we conclude that…". He further argued that the report showed that the Committee's recommendations were based on those findings.
Fourth, Dr Mahony argued that "the process undertaken by the Dental Council and the Assessment Committee to date has been a charade". He submitted that the manner in which the Assessment Committee had proceeded was unfair and lacked transparency. He submitted that "the legislature could not have intended the Dental Council to handle important disciplinary matters in such a fashion without any possibility of oversight or appeal and the legislation should not be construed so as to permit that". He also argued that to do so requires a strained construction of the statute inconsistent with the plain language used in it.
Fifth, Dr Mahony also submitted that the underlying objects and policy of the National Law in relation to handling of complaints, and a linguistic analysis of ss 158 and 158A, supported his argument that an appeal was available to him. He argued that the indefinite article "a" in the term "a committee", used in the two sections is a significant indicator that the sections relate to more than one type of committee. He also noted that in Division 6 of Part 8 of the National Law there is no separate definition of the word "Committee" - rather the definition provided in s 138 is the governing definition. It provides that a Committee means either an Assessment Committee or a Professional Standards Committee. He also argued that where it was intended that the word "Committee" means one form of committee only, the statute makes that clear. So, for example, s 146 explicitly states that in Subdivision 3 of Division 3 "Committee" means "a Professional Standards Committee". Similarly, s 147 states that in Subdivision 4 of Division 3 "Committee" means "an Assessment Committee". He submitted that the inference to be drawn from the absence of such express definition in Subdivision 1 of Part 6 is that there was no intention to confine the right of appeal to findings of a Professional Standards Committee.
Sixth, he submitted that the absence of any means of appeal or oversight of the investigations of an Assessment Committee other than ss 158 and 158A supports the interpretation for which he argued.
Seventh, in response to the Council's submissions, he argued that the distinction drawn by the Council between "investigation" and "inquiry" does not aid the proper construction of ss 158 and 158A because there is no difference in substance between an investigation which makes findings and an inquiry which does so.
Eighth, Dr Mahony argued that s 158A(1) is enlivened whenever a complaint is referred to a committee and there is a basis to appeal on a point of law. It does not, in its terms, require a "decision". Appeals on a point of law can be many and varied and do not depend on a "decision" as such. But in any case, he submitted, the Assessment Committee had made a decision, namely, to recommend that the complaint be dealt with by a Council inquiry. This recommendation required the Council to conduct the inquiry recommended and the decision to hold that inquiry was therefore a decision made by the Assessment Committee not the Council.
Lastly, Dr Mahony argues that the fact that an appeal lies from any decision made by the Council at the inquiry is irrelevant to a proper construction of the statute.

The applicable principles of statutory interpretation

Courts and tribunals are obliged, in interpreting statutes, to give effect to the will of the legislature as can be divined from the text of the statute itself. This is not an exercise in discretion. The text of a provision is the starting point. Context and purpose must be taken into account where they rationally assist the proper understanding of a statutory provision, especially in cases where a provision is ambiguous and, on its face, capable of different constructions. But it is not necessary first to find ambiguity to consider context and purpose.
Context includes material that, according to reason and logic, can inform a proper understanding of the text of a legal instrument or statute: CIC Insurance Ltd v Bankstown Football Club [1997] HCA 2 (1997); 187 CLR 384. This may include other parts of a statute or the statute taken as a whole. Generally a statute should be read as a whole to find the proper context for interpretation of particular provisions: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]. This approach may have to be modified when the statute is divided, as is the National Law, into multiple parts but the general principle is that words receive the same meaning and are used consistently throughout a statute: see, for example, United Airlines v Sercel Australia [2012] NSWCA 24 and DC Pearce & RS Geddes, Statutory Interpretation in Australia, 8th edn (2014) [4.6].
The Interpretation Act 1987 (NSW) also enacts a number of principles that are relevant to the issue in this case. Section 6 provides: "Definitions that occur in an Act or instrument apply to the construction of the Act or instrument except in so far as the context or subject-matter otherwise indicates or requires".
Section 7 provides: If an Act or instrument defines a word or expression, other parts of speech and grammatical forms of the word or expression have corresponding meanings.
Section 33 states: In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

Consideration

Difficulties can arise in ascertaining the purpose of a statutory provision. Sometimes a provision may appear to have more than one meaning. Poor drafting, resulting in ambiguities in legislation, can muddy the analysis of context. This is such a case.
Sections 158 and 158A are ambiguous for a number of reasons. First, they fall within Part 8 of the National Law and, therefore, given that there is no further definition of the term "Committee" in subdivision 1 of Division 6 of Part 8, the definition of "Committee" given in s 138 appears to apply to that term in the two sections.
Second, while there is some contextual support for the Council's argument that the two sections implicitly exclude appeals from Assessment Committees, there is also some contextual support for the argument that in relation to "findings" by an Assessment Committee an appeal is available pursuant to s 158.
Reading s 158 contextually, I have concluded that the term "Committee" in this section is a reference to a Professional Standards Committee alone. While I accept that the definition in s 138 on its face appears to encompass the reference to the term "Committee" in s 158, the section contemplates appeals against findings by "the Committee" to which a complaint has been referred or an exercise of power by that Committee pursuant to Subdivision 3 of Division 3. As the powers exercisable under Subdivision 3 are granted to Professional Standards Committees, and therefore cannot be exercised by Assessment Committees, and the same committee appears to be assumed to be able to make findings or exercise powers under Subdivision 3, the natural and ordinary meaning to be given to the word "Committee" in the context of s 158(1) is "Professional Standards Committee".
I accept that, in practice, as in this case, Assessment Committees may make, or purport to make, "findings". However, such "findings", if made following an investigation, are not conclusive but are advisory or preliminary in nature. It is for the relevant Council, conducting an inquiry and properly applying the rules of procedural fairness, to make whatever findings it considers are properly available on the evidence. It is the "findings" made at an inquiry that form the foundation for whatever action then follows, not the Assessment Committee's conclusions.
Although the ordinary dictionary meaning of "investigation" can encompass the synonym "inquiry", it is significant, in my view, that the terms do not appear to be used interchangeably in Part 8 of the National Law. While definitions of the terms are not provided in s 138 or elsewhere in Part 8, the terms appear to have distinct meanings in the context of Part 8. An "inquiry" (by a Professional Standards Committee or Council) can lead to findings of fact and the imposition of disciplinary penalties. On the other hand, "investigations" (by Assessment Committees) can lead only to recommendations and inquiries.
It is significant, in my view, that an Assessment Committee has far more limited disciplinary powers than a Professional Standards Committee. An Assessment Committee's only real power is to make recommendations to the Council which can then take action. An appeal lies against decisions of Council following an inquiry established on the recommendation of an Assessment Committee. While a Council is bound to hold an inquiry recommended to it by an Assessment Committee pursuant to s 147D(3)(a), the Council is not bound by "findings" or conclusions reached by the Assessment Committee.
On the other hand, a Professional Standards Committee has broader powers. Part 8 provides for two distinct modes of investigation of complaints. Professional Standards Committees are invested with power to make findings and impose penalties directly. In the context of Part 8, this implies that it is against decisions, such as "findings" and exercises of power, by Professional Standards Committees that appeals pursuant to s 158 may be directed.
While beneficial legislation, such as provisions providing for rights of appeal, should be construed liberally, courts and tribunals are not permitted to interpolate rights or benefits into legislation that a statute does not grant expressly or impliedly. The intention of the legislature has to be gleaned from the text. Although it appears that one of the general purposes of the National Law is to ensure that complaints are dealt with fairly (on both sides), that general purpose does not throw much light on the proper construction of the words of s 158. In this context, it appears that the intention of the legislature is to provide a right of appeal that is limited to the deliberations, findings and actions only of Professional Standards Committees. That is unfortunate for Dr Mahony but the Tribunal has no warrant to expand that statutory right.
In my view, therefore, the Tribunal does not have jurisdiction to entertain an appeal against "findings" of an Assessment Committee.
The issue is more difficult in relation to s 158A. While generally the same words used in the same statute ought to be construed as having the same meaning, if this results in reading down a beneficial or remedial provision, great caution will be needed to ensure that such an interpretation is correct. Section 158A provides for an appeal on points of law. If read alone, s 158A(1) would seem to open up the possibility of an appeal on some legal basis against some action or omission on the part of an Assessment Committee. Assessment Committees, presumably, may make errors of law from time to time. Failure to afford procedural fairness in the conduct of their investigations is but one possibility. I do not accept that the term "point of law" relates only to decisions made by "a Committee". In any case, I accept that the Assessment Committee made a decision to recommend a Council inquiry.
However, the difficulty I have in accepting Dr Mahony's argument in relation to this section is that the right of appeal is limited by the statute itself. It may be made only during an "inquiry", or after notice of an inquiry has been given: s 158A(2). Sub-section 3 relates to inquiries being conducted by Committees, not Councils. As stated above, I interpret the term "inquiry" in this context as having a meaning distinct from the term "investigation". Professional Standards Committees and Councils have power under the National Law to conduct inquiries. Assessment Committees do not.
It follows, therefore, that s 158A relates to inquiries being conducted only by Professional Standards Committees and that the Tribunal does has no jurisdiction to deal with an appeal under s 158A on points of law in relation to the Assessment Committee's investigation.

Conclusion 1. The appeal is dismissed for want of jurisdiction.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 August 2018

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