Mapa v Medical Council of New South Wales

NCAT Occupational|2021-09-20

REASONS FOR DECISION

Dr Mapa has appealed under s 159 and s 159B of the Health Practitioner National Law (NSW) (the National Law) against a decision of the Medical Council of New South Wales (the Council) suspending her from medical practise from midnight on 23 July 2021.
Dr Mapa has applied under s 165L(2) of the National Law for an order that the decision of the Council be stayed pending the outcome of her appeal.
This decision deals with Dr Mapa's application for a stay of the decision of the Council under s 165L(2) of the National Law.

The National Law s 165L(2)

The National Law provides, in s 165L(2): (2) The Tribunal may, in respect of an appeal under section 159B, make an order staying the decision of the Council appealed against until the appeal has been disposed of.
The Tribunal therefore has power, in this matter, to stay the decision of the Council until the appeal under s 159B is disposed of (see Hill v Medical Council of New South Wales [2019] NSWCATOD 52 at [20] and Medical Council of New South Wales v Lee [2017] NSWCA 282 at [93]-[96]).

Principles relevant to an application for a stay

The principles to be applied when considering the merits of an application under s 165L(2) of the National Law for a stay of a Council's decision pending the final disposal of the appeal under s 159B of the National Law are set out in Ansari v Medical Council of New South Wales [2021] NSWCATOD 138, Hill v Medical Council of New South Wales [2019] NSWCATOD 52 and Liu v Chinese Medicine Council of New South Wales [2019] NSWCATOD 13. They are: 1. The onus is on an applicant for a stay to make out a case that it is appropriate to make such an order. 2. An order staying the operation of a decision or orders will generally be appropriate where such an order is reasonably necessary to secure the effectiveness of the appeal. 3. The Tribunal may take into account the strength or otherwise of the case of the party seeking the stay. 4. The Tribunal's power to grant a stay includes a power to make such an order subject to such conditions as the Tribunal specifies. 5. In exercising the discretion the Tribunal will weigh the balance of convenience and the competing rights of the parties and may impose appropriate conditions so as to achieve a result that is fair to all parties. 6. The overriding principle in an application for a stay is to ask what the interests of justice require.
Each principle will be considered in turn.

The onus rests upon the applicant for the stay

The applicant relied upon an affidavit of Dr Mapa dated 1 September 2021, together with its attachments and the transcript of the hearing held under s 150 of the National Law.

Is a stay necessary to secure the effectiveness of the appeal

It was argued, in support of Dr Mapa's application for a stay, citing Paringa Mining and Exploration Co PLC v North Flinders Mines Ltd (1988) 165 CLR 452; 81 ALR 609 and Kalifair Pty Ltd v Digitech (Aust) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383, that a stay is necessary to maintain the existing state of affairs in order to preserve the subject matter of the proceedings. The first case cited related to the ownership of shares in various companies. The second case cited related to awards of damages. It seemed that the use sought, by Dr Mapa, to be made of the principle stated in those cases involved the characterisation of Dr Mapa's solo practice as the subject matter of these proceedings. In fact, the subject matter of these proceedings is Dr Mapa's registration as a medical practitioner. The cases cited have no direct relevance. The impact of suspension on Dr Mapa's practice has some relevance, which will be considered below, but that relevance does not arise from the practice being the subject matter of the proceedings, or from there being any overriding need to preserve the practice.
Further, it was argued on behalf of Dr Mapa, a stay should be ordered where refusal would render the appeal futile. Again, this argument was based on the characterisation of Dr Mapa's solo practice as the subject matter of the proceedings, and is misconceived.
In his submissions on behalf of Dr Mapa, Mr Robinson argued as follows: 45. Her affidavit establishes that she needs her medical registration restored in order to enable her to continue to engage legal representatives to conduct her external appeal, which has not yet been set down for a hearing. 46. As a result of the Decision, Dr Mapa is not working and continues to suffer serious reputational and financial stress. 47. The longer the suspension continues, the higher the risk that the reputational harm that Dr Mapa is currently experiencing will become irreversible. 48. Practitioners who worked will continue to develop relationships with professionals and her reputational damage will make her return to full time work more problematic. 49. The applicant's patients will inevitably drift away to other practices, as set out in her affidavit at [25]. 50. The financial consequences that will occur if Dr Mapa continues to be unable to work in his profession are set out in paragraphs of her affidavit at [26] - [34]. 51. These may include debts associated with the fixed lease on her premises, as well as reliance on Centrelink. 52. Very soon it will be impossible to restore Dr Mapa to the position she was in prior to the decision that is affected by error. The Tribunal can be satisfied that a stay is appropriate to secure the effectiveness of the determination of the application: Williamson v Director General, Department of Transport [2000] NSWADT 165 at [12]. 53. The appeal will effectively be nugatory if the operation of the respondent's decision is not stayed. 54. The applicant's accountant (of 30 years) has also put on evidence before the Tribunal. 55. He has determined "It is my opinion that without the income that she generates from the Medical Practice, she will not be able to survive financially until such time the substantive hearing is heard." 56. The applicant is currently unable to work, and will not be able to afford to conduct her appeal or the other hearings that are now on foot. To press ahead could render the NCAT proceedings otiose. 57. The applicant is accordingly seeking to be in a position to conduct her external appeal.
The letter from Mr Cassimis, Dr Mapa's accountant, comprises five short paragraphs. It presents a conclusion whilst providing very scant information. No mention is made of savings or investments apart from one investment property. No mention is made of a place of residence. No mention is made of any ability to gain access to financial support from Dr Mapa's insurer.
Dr Mapa, in her affidavit, disclosed that she owns her home and has about $30,000 in savings. Dr Mapa, in her affidavit, spoke of her concern about continuing to support 10 poor children in Sri Lanka, as she has been doing for a number of years, and a Buddhist temple in Sri Lanka. She said that she sends about $400 per month to the charities.
Dr Mapa, in her affidavit, expressed concern about her ability to pay for legal representation and for a report from a clinical Neuropsychologist if her application for a stay is not granted.
The Council, in its submissions, pointed out that Dr Mapa's evidence in relation to her financial position was not supported by any financial records, such as bank statements, tax returns or information in relation to any superannuation. There is no evidence from Dr Mapa's husband about his financial positions (though his salary from Dr Mapa's practice is disclosed in Dr Mapa's affidavit).
The Council submitted that the letter from Mr Cassimis lacks probative value. The letter was said to contain a general assertion which appeared to be premised upon the hearing of the matter taking place in the far distant future.
In any event, it was submitted, Dr Mapa's own evidence is that her income from her solo practice was already significantly diminished on account of the Covid 19 pandemic, which reduced her patient load to only 5 to 7 patients per day.
The Council argued that any financial detriment which would be suffered by Dr Mapa, on account of a refusal of the stay application, would be outweighed by the public interest in the Council's decision remaining in operation.
It is clear that, whilst her registration is suspended, Dr Mapa will not be generating an income from her solo practice (unless a locum could successfully be engaged) and will not, therefore, be able to pay for legal representation or medical reports from a current cash flow from that source. The information before me, however, is not sufficient to prove, on the balance of probabilities, that Dr Mapa will have no ability to pay for legal representation or medical reports, or to pay for the ongoing expenses of her practise, such as rental payments. The evidence of savings, an investment property and home ownership suggests to the contrary. Nevertheless, I accept that the suspension of her registration is likely to have an adverse impact upon the financial position of Dr Mapa,

The Tribunal may take into account the strength or otherwise of the case of the party seeking the stay

It was Dr Mapa's submission that her case on the appeal under s 159B of the National Law is a strong case. The written submissions say: 61. …Given the factual circumstances of the case, the outcome is unreasonable on the basis that: a. no reasonable person properly applying the test in section 150 could have made it, or b. it is irrational or illogical, or c. it is plainly unjust and arbitrary, or d. the decision does not relate intelligibly to the purpose of the statutory power being exercised. 62. Further, the respondent denied the appellant natural justice or procedural fairness in that it conducted a hearing on 2 July 2021 in the absence of the appellant, wrongly refusing an adjournment that was requested and resulting in the formation (of) a preliminary view of the respondent that was adverse to the appellant. 63. Also, the respondent made its decision without determining the complaint dated 19 September 2019 from a patient, [name of patient], leading to the respondent's section 150 inquiry, focusing on other matters instead. 64. The respondent wrongly failed to establish that the imposition of conditions on the appellant's registration would be sufficient and wrongly held that the only option was the imposition of a suspension.
The Council, in its submissions, pointed out that the alleged unreasonableness of the decision, including the claimed irrationality and arbitrariness has not been particularised by the Applicant.
No issue was raised as to the applicability of the principles argued to the Council in relation to proceedings under s 150 of the National Law.
The Council cited Minister for Immigration and Border Protection v Eden [2016] FCAFC 28, a decision of the Full Court of the Federal Court, which said, at [60]-[65]: Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an "outcome focussed" conclusion without any specific jurisdictional error being identified. … Fourth, in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of "decisional freedom" within which the decision-maker has a genuinely free discretion…. Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness….Such a decision falls within the range of possible lawful outcomes of the exercise of the power. … Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable….However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible outcomes. … …the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power….The expressions that have been utilised include decisions which are "plainly unjust", "arbitrary", "capricious", "irrational", "lacking in evident or intelligible justification", and "obviously disproportionate". It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a "checklist" exercise. …Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.
The Council made the following submission in relation to the question of whether its decision could be characterised as manifestly unreasonable: 54. On no view could it be properly argued that the Decision was "plainly unjust", "arbitrary", "capricious", "irrational", "lacking in evident or intelligible justification", or "obviously disproportionate". In reaching their conclusions, the delegates took into account material and information the Applicant herself provided, including information as to the manner in which she has conducted her practice, her recordkeeping, her attitude towards conditions imposed on her and material she had provided in the course of the assessment and review process. Significantly, the material before the delegates included a comprehensive report from Dr McMillan, which identified a cognitive impairment in the Applicant. The material before the delegates, including information provided by the Applicant herself, revealed serious clinical deficiencies. These aspects, together with other issues identified in the Decision, including the Applicant's failure to implement standards and guidelines promulgated by government to ensure safe practices in the context of a pandemic and her attitude towards conditions imposed upon her (which she did not properly comply with), were more than sufficient to enable the delegates to reasonably form the view that it was appropriate to order a suspension.
On the basis of the material before me, Dr Mapa's case in relation to legal unreasonableness is not a strong case.
In relation to the procedural fairness argument advanced by Dr Mapa, the exchanges between the Council and Dr Mapa's legal advisers in relation to the arrangements for the hearing under s 150 of the National Law are set out above at [13].
In EFQ v Medical Council of New South Wales [2021] NSWCA 167, Bell P, with whom MacFarlan JA and Brereton JA agreed, said, at [67]-[69]: 67. A party which is given ample notice of a hearing cannot complain that there has been a denial of procedural fairness where he or she declines to participate in the hearing and the hearing proceeds in accordance with the adequate notification. Procedural fairness requires an adequate opportunity to participate to have been given, and a denial of procedural fairness cannot be generated by a deliberate or conscious decision not to participate in a hearing of which sufficient notice has been given. 68. In Cuttler v Browne (2010) 201 IR 141; [2010] QCA 346 at [24], the Court addressed the question of notice as a component of procedural fairness in circumstances where the "evidence makes it abundantly plain that the applicant was avoiding service". In such circumstances, it was held by Muir JA (with whom Holmes and Fraser JJA agreed) that "the applicant was not denied a right to appear and be heard. He merely failed to exercise such a right. There was no denial of procedural fairness": at [25]. In Lewis v Chief Executive of the Department of Justice and Community Safety of the Australian Capital Territory (2013) 280 FLR 118; [2013] ACTSC 198 at [165], Refshauge ACJ said that "[i]t is clear on the authorities that a party who is given an opportunity to put his or her case but, through their own default, fails to take the opportunity, has no basis for complaint if they are not heard", citing Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [27]. 69. Turning, then, to the focus on the question of an adjournment, it is clear that a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness: see, for example, Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 611; [2002] HCA 11 at [40]; and Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [19] (Li). Review of the reasonableness or otherwise of the exercise of a discretion to grant an adjournment is informed by the considerations referred to by the High Court in Li. There is a stringency to the test for reviewing such a discretionary decision, particularly where the discretion is not exercised by a judicial body (see Li at [113]) even though the test of "legal unreasonableness" is not necessarily to be confined to the famous formulation associated with Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223: see Li at [66]-[72]. The stringency of the test is reflected, for example, in the language of Hayne, Kiefel and Bell JJ in Li at [76], namely that "[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification"; see also the language of Gageler J in Li at [124]: "[n]o reasonable tribunal, seeking to act in a way that is fair and just, and according to substantial justice and the merits of the case, would have refused the adjournment".
On the basis of the material before me, Dr Mapa originally sought an adjournment of the Council hearing on the basis that she had an appointment on 2 July 2021 to receive a Covid 19 vaccination. The Council replied that it would accommodate that appointment. Dr Mapa still declined to attend, but said that she was happy for the hearing to proceed on the papers as long as she could make submissions. The making of submissions by Dr Mapa was then facilitated. No reason was advanced by Dr Mapa for refusing to attend the hearing. Dr Mapa did not pursue her application for an adjournment after being told that her vaccination would be accommodated by the Council. Dr Mapa apparently worked at her practice on the morning of 2 July 2021.
Bearing in mind that the hearing was to be by teleconference, there was no impediment to Dr Mapa attending the hearing and there being a break in proceedings to allow her to receive a vaccination. It also appears that Dr Mapa expressly agreed to the procedure for the hearing which was ultimately undertaken. Dr Mapa did, ultimately, appear by telephone before the delegates and give evidence on 23 July 2021. This was also a day upon which Dr Mapa had arranged to get a Covid 19 vaccination.
The Council, in its reasons, stated that its reason for refusing the application to adjourn the hearing was that, on the basis of the brief presented to them, the delegates had formed a preliminary view 'that there was an urgent need for a risk assessment to be undertaken'.
In these circumstances, Dr Mapa's argument in relation to procedural fairness is not a strong argument.

An order for a stay may be made subject to conditions

It was submitted on behalf of Dr Mapa that the imposition of conditions on her registration would be sufficient, and suspension was not warranted. A draft set of proposed conditions was provided by Dr Mapa. There were some similarities between those conditions and the conditions imposed on 1 February 2021 (see [27], above).
Before the delegates on 23 July 2021, the conditions of 1 February 2021 were raised, and the following exchange occurred about those conditions: Dr Mapa: Presently I don't agree with any of those, number one being I respect the reports of Dr Cordato and Dr Chris Norris, they are both Geriac and Neurologist. Thirdly, I've not got any complaint other than this complaint from any patients. Fourthly I've got good specialist reports. I have more reports as well. I've got reports because the specialists have known me for 20, 30 years, whereas the Medical Council interrogate me for a few hours. They have known me over 20, 30 years and they know I practice medicine and how I get the [27:38} and sometimes my husband goes and drops the patients to his or her appointments and how I do the follow up and who I've saved lives of my patients, which I'm very proud. So presently, I don't agree with those conditions but that is the way I tell you; and my patients, they really, really want to meet the Medical Council. They don't want to meet anyone, they all want to meet the medical Council and speak with them. Thank you. Dr Morton: So, Dr Mapa, do you intend to follow these conditions? Dr Mapa: I don't deserve to. I, I feel that I should not be on those conditions. You see the report that my supervisor sent. She said I'm not harm to the people. She's very happy with me. So why do I have to follow those? Because supervisor is very happy, the Neurologist is happy and the Geriatrician is happy. I've not killed any patients, no mis-diagnosis, no wrong doing. Dr Morton: Excuse me. Dr Mapa: Yeah. Dr Morton: Can you specifically answer the question? Dr Mapa: Yeah. Dr Morton: Do you intend to follow the conditions? Dr Mapa: No. I, I…I don't understand why those conditions are put on me now because I have done the best the, you and the supervisor's report have done the best that I could do. So I don't know why they are still imposed on me. I don't know, I'm sorry.
I acknowledge that Dr Mapa's counsel assured the Tribunal that Dr Mapa would comply with any conditions imposed by the Tribunal should the order for a stay of the suspension of Dr Mapa's registration imposed by the Council be made. Given the attitude expressed by Dr Mapa to the conditions imposed on 1 February 2021, however, it is reasonable to doubt how carefully any conditions would be complied with, and for what period of time.
Aspects of the reasons given by the delegates for suspending Dr Mapa's registration cannot effectively be addressed by the imposition of conditions. Dr Mapa seems to have made no real effort to address the issues identified by Ms McMillan. Her record keeping, though improved, is still problematic. Her approach to some of the clinical issues raised at the s 150 hearing on 23 July 2021 is concerning, as is her omission to engage comprehensively with the precautionary measures now required on account of the pandemic.

The balance of convenience and the competing rights of the parties are to be weighed, and the Tribunal may impose appropriate conditions to achieve a result which is fair to all parties.

The basis for the Tribunal's reluctance to grant a stay on the basis of conditions is set out above at [59]-[60].
I acknowledge that the suspension of her registration has a significant adverse impact upon Dr Mapa, both financially and in relation to her reputation. I acknowledge that the survival of her solo practice is of great importance to Dr Mapa.
As a regulatory authority, the Council has no 'rights' to be weighed. It is simply performing its statutory function. In that capacity, it has argued for the public interest.

The interests of justice

The National Law provides, in s 3A: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
The Council suspended Dr Mapa's registration under s 150(1)(a) of the National Law. That section provides: 150 Suspension or conditions of registration to protect public [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest - (a) by order suspend a registered health practitioner's or student's registration;
Consideration of the interests of justice in a matter of this kind includes the consideration of the potential risk to patients of permitting a possibly impaired practitioner, whose systems and practices, on assessment, have been found wanting, to continue practising in the short term. It was submitted, on behalf of Dr Mapa, that any deficiencies in Dr Mapa's manner of practising, including her approach to Covid 19 precautions, can be remedied by further education. That is only partly true. Even if the risks could all be identified and addressed by the delivery of education, that education would still have to be implemented on an on-going basis. The issues raised in this matter concern the question of whether Dr Mapa has the capacity to achieve that in her solo practice.
Having regard to the whole of Ms McMillan's report of 16 November 2020 and the issues with Dr Mapa's practice set out in the delegates' reasons of 23 August 2021, the public interest and the interests of justice weigh against the granting of a stay.

Conclusion

Having regard to the issues set out above in relation to the principles to be considered in relation to the application for a stay, the applicant has failed to discharge her onus of proof and has not shown that it is presently appropriate to make an order staying the suspension of her registration as a medical practitioner.
This decision is made in the context of Dr Mapa maintaining her position that she wishes to continue in solo practice.

Order

There will be an order in the following terms: 1. The application for a stay of the decision made on 23 July 2021, under s 150(1)(a) of the Health Practitioner Regulation National Law (NSW), to suspend Dr Mapa's registration as a medical practitioner is refused. 2. The Medical Council of New South Wales may file and serve submissions with respect to the costs of the application for a stay on or before 15 October 2021. 3. Dr Mapa may file and serve submissions with respect to the costs of the application for a stay on or before 29 October 2021. 4. Both parties may file and serve submissions on the question of whether the Tribunal should, under s 50 of the Civil and Administrative Tribunal Act 2013 (NSW), dispense with a hearing in relation to the application by the Medical Council of New South Wales for an order for costs in relation to the application for a stay, and determine that application on the material provided to it, on or before 29 October 2021. 5. The matter is listed for further directions at 10:30am on Friday 15 October 2021.

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: 08 October 2021

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Judgment (13 paragraphs)

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