Mapa v Medical Council of New South Wales [2021] NSWCATOD 159 | Case summary

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]).

Background

Dr Mapa is a 72 year old specialist general practitioner. She has been in solo practice for about 28 years in New South Wales. Dr Mapa was born in Sri Lanka, and undertook her medical training there before migrating to Australia in 1988 at the age of 40. English is Dr Mapa's second language.
On 19 September 2019, a former patient of Dr Mapa's complained about Dr Mapa to the Health Care Complaints Commission. The complaint comprised allegations about Dr Mapa's behaviour and said that a cat had been 'roaming around the surgery'.
Following the complaint, the Council arranged a performance interview with Dr Mapa on 20 August 2020. The assessors did not come to a final conclusion at that interview, but expressed concerns about Dr Mapa's 'casual and indifferent' approach to the problems raised. It was noted that Dr Mapa frequently interrupted the assessors when being questioned. The assessors were also concerned about their perception that Dr Mapa's view about the complaint was rigid. The assessors recommended that a performance assessment of Dr Mapa's practice be undertaken, and that Dr Mapa undergo a neuropsychiatric health assessment.
Dr Mapa attended a neuropsychological assessment by neuropsychologist Jillian McMillan in November 2020. In her report, dated 16 November 2020, Ms McMillan said that she assessed Dr Mapa over a period of three and a half hours including two five minute breaks. Ms McMillan's findings, in summary, were as follows: Neuropsychological assessment revealed evidence of striking executive dysfunction in the context of otherwise generally intact cognitive function. Overall the cognitive profile was consistent with underlying Mild Cognitive Impairment (MCI) - Non-amnesic subtype. The impairment present on testing is consistent with Dr Mapa's presentation at her Performance Assessment and the issues currently under investigation.
Ms McMillan summarised her recommendations as follows: With the cognitive profile in mind, particularly in light of the degree of executive dysfunction present, I am of the opinion that Dr Mapa does suffer from an impairment from a cognitive perspective according to Health Practitioner Regulation National Law (NSW). Consideration of restrictions on her registration, including supervision and a requirement for her to work in a group practice, is recommended to allow more oversight of her work.
A Council Based Assessment of Dr Mapa took place on 20 May 2021. The assessment concluded that Dr Mapa's performance in practice was unsatisfactory in relations to her communication, history taking, clinical reasoning and diagnosis, investigations, management, advice and "safety-netting", prescribing and medical record keeping. These constitute almost all areas of medical practice.
On 15 June 2021, a resolution was made to convene proceedings under s 150 of the National Law in relation to Dr Mapa, noting that the potential risks were that Dr Mapa had been assessed as unsatisfactory in almost all areas of medical practice in the Council Based Assessment, she displayed a lack of insight, Ms McMillan had diagnosed a cognitive impairment, there was a risk to public health and safety, Dr Mapa was a solo practitioner, and there had been prior complaints.
In their report, the delegates of the Council who comprised the delegates for the proceedings under s 150 of the National Law gave the following history of the convening of the delegates for the proceedings: Council decided to convene s150 proceedings, and the s150 was arranged for 2 July 2021. On 25 June Council wrote to Tamsyn Johnstone of Australian Presence Legal, Dr Mapa's legal advisers at that time, to advise of the s150 proceedings. Councli advised that a s150 was to be convened given Council concerns, that the s150 would be held by teleconference, commencing at 10am, and that it was a routine expectation that Dr Mapa and her advisers could attend. At that time, COVID19 pandemic arrangements were in place at Council and all s150 hearings were routinely conducted as teleconferences. In addition to this, the s150 had been convened in the timeframe of a city-wide lockdown due to a COVID 19 outbreak in Sydney. This affected all participants in the s150 hearing. It was anticipated that Dr Mapa would join from a location separate to that of her legal advisers, but that adjournments would be taken from time to time to allow for Dr Mapa to seek advice from her advisers, as required. Dr Mapa initially advised through her legal advisers that there was an issue with the date chosen for the s150 hearing. She had already arranged an appointment to receive her first COVID vaccination in the afternoon of 2 July 2021. A request to adjourn for two weeks was made. This request was considered and not agreed to by· the delegates, given that on first reading of the Brief that had been prepared, the delegate's preliminary view was that there was an urgent need for a risk assessment to be undertaken. Council advised Dr Mapa through her legal advisers that the hearing would proceed on 2 July 2021 and that delegates would accommodate the timing of her vaccination appointment so that she could attend. Dr Mapa and her legal advisers were invited to attend by video conference or phone. Through her legal advisers, Dr Mapa declined to attend, and indicated through her lawyers that she was happy for the hearing to proceed on the papers as long as she could make submissions. Council informed Dr Mapa through her legal advisers that while the delegates could proceed on the papers, it remained open to her to attend, and that it remained the delegates' preference that she attend and answer questions directly. On 29 June 2021, Council repeated the invitation to Dr Mapa to attend the s150 hearing on 2 July 2021, this time through her new legal advisers HWL Ebsworth. HWL Ebsworth advised Council that they had now been instructed by Dr Mapa, and they understood the hearing was to be on the papers. Council repeated the invitation to attend that had been made. HWL Ebsworth subsequently advised that Dr Mapa was not intending to attend the hearing. Given this situation, and leaving open the option for Dr Mapa to attend by video conference or phone on 2 July, on 30 June 2021, the Council delegates posed a number of preliminary questions to Dr Mapa through her legal advisers, as in Attachment 4. Responses to the questions were received by way of a 2 page letter dated 2 July 2021 from Scott Chapman and Megan Priestley of HWL Ebsworth on Dr Mapa's behalf, emailed to Karen Payne Program Officer Medical Council on 9.55am on 2 July 2021, as in Attachment 5. The answers to the questions amounted to 17 full or part lines of text in total. The s150 was commenced on the papers at 10am on 2 July 2021, after the delegates confirmed that Dr Mapa had declined to attend the teleconference by AVL or phone. Her legal advisers declined to attend in her absence. The answers to the preliminary questions that Dr Mapa had provided through her legal advisers were taken into account, in addition to the documents Brief which had been prepared by Council and those further documents that had been provided on behalf of Dr Mapa by that date. We note that both Council and Dr Mapa's legal advisers experienced system issues and interruptions to computer connections on the day of the hearing on 2 July 2021. Connections were re-established after half an hour or so. Council's program officer assisting the delegates was able to communicate with the legal advisers to clarify that the s164G information was current and whether Dr Mapa was at her practice that morning. Council was advised by email message on 2 July 2021 that the s164G information was current, Dr Mapa was not intending to attend, and that Dr Mapa was at work for the morning, and was then leaving in the middle of the day, ahead of her own previously arranged COVID vaccination appointment in the afternoon. … The delegates gave further preliminary consideration to the totality of the information and submissions that had been received to date. The delegate's preliminary view as at 6 July 2021 was that at least on the papers some of this new information had alleviated heightened concerns and that suspension may not then be the appropriate action. Importantly from a procedural perspective, there was now an indication that Dr Mapa was willing to engage further with the s150 proceedings. The delegates considered that providing a further opportunity to attend would be the preferable next step in terms of procedural fairness. Therefore, the delegates decided to provide Dr Mapa with a further opportunity to attend a reconvened s150 teleconference (by AVL or phone) and answer questions before the delegates. This would potentially assist in considerations of what if any action should be taken under s150. The s150 was reconvened for a half day on 23 July 2021, commencing at 9am. This earlier start time was arranged on request of Dr Mapa, as she had a second COVID vaccination appointment already booked for that afternoon. We anticipated then completing by approximately 12 noon. The proceedings reconvened at 9.05am on 23 July 2021. Dr Mapa attended by phone from her home. She told us that while there was a computer and internet at home, only her husband was there with her. They were both not computer literate, so if it went off she would not know how to reconnect. In previous interactions with Council, she had been with her lawyer and they knew how to reconnect.
The delegates concluded, after the s 150 hearing, that Dr Mapa had taken some steps to improve her medical record keeping. The fundamental problems identified by the assessors included the paucity of information and inadequate history recorded, together with the illegibility of the notes, which Dr Mapa was handwriting onto A5 cards. Copies of referral letters and care plans were not retained on file, and records of past immunisations, for example, were not readily able to be accessed. Dr Mapa had partially addressed this by having her husband type up her handwritten notes into a Word document. By 6 July 2021, Dr Mapa said that she had created historical summaries of her records for about 50 of her approximately 800 patients. On 23 July 2021, Dr Mapa said that about two fifths of the patient summaries had been entered onto the computer. Dr Mapa, in the course of the process, described herself as 'computer illiterate'.
Dr Mapa handwrites her prescriptions, but notes them in her notes. She said that she generally writes 5 to 6 months' worth of medication for a patient so that they do not have to come back to her very often.
The assessors found that there was inadequate emergency equipment at Dr Mapa's surgery. By 2 July 2021, Dr Mapa had purchased an ECG machine, a bag and a mask. She also had also purchased a steel cupboard to keep 'important documents' locked up, but it had yet to be delivered.
The delegates noted that the following exchange occurred at the Performance Interview on 20 August 2020: When the interviewers asked her what resources she referred to, to assist with clinical decision making, she said she rings a specialist if she is concerned, or she read "Harrison's textbook' or 'How to treat', she was not aware of any clinical guidelines that she referred to. She said she goes to clinical teaching sessions that are run at some local private hospitals.
The delegates then noted that Dr Mapa's solicitor's submissions indicated that there had been significant improvement in the quality of resources available to Dr Mapa. The delegates said, in their reasons, at p 19: Dr Mapa told us that she has a computer in her consultation room. She uses the computer to look at resources such as the Therapeutic guidelines, the Australian Medicines Handbook, John Murtagh Library, NPS Medicine Wise Resources, and Pubmed US Library of Medicine. Her husband had put the guidelines on the computer. However, when we asked when this had happened, Dr Mapa told us that it was maybe 3 or 4 days ago. We therefore consider that there is a significant risk that routine reference to up to date guidelines and online resources has not been undertaken by Dr Mapa, and given her professed computer illiteracy, there is a significant risk that even now with guidelines and resources loaded onto her computer, the information in them likely potentially remains inaccessible to Dr Mapa at the time of her consultation with patients. Dr Mapa told us that she clicked onto the guidelines when she was free, between patients, if she wanted to read on a particular topic. She did not click on it when a patient was in the room with her. When a patient was in the room with her, she gave all of her attention to the patient. We asked Dr Mapa what she did if she had a complex issue with a patient. Dr Mapa told us she rang one of the specialists on the phone immediately, and she could get the patient an appointment with the specialist that day if needed. We note that Dr Mapa has provided supportive references from a number of specialists. Notwithstanding this, we have concerns that there is a serious and significant risk that Dr Mapa potentially practises in an unsafe way in some instances. For example, she described that if a patient had chest pain, and she was not sure given their symptoms, she could ring a specialist and send the patient to the specialist. The specialist could do an ECG and if they were not happy, send the patient in an ambulance to hospital. Her husband could drive the patient to the specialist if needed. We were very concerned with this description, as we would have expected Dr Mapa would be aware of the expectation that a general practitioner would refer a patient with chest pain via ambulance directly to hospital.
The delegates gave a summary of the evidence given to it by Dr Samarasekera, who had supervised Dr Mapa since April 2021. I take that summary into account. Dr Samarasekera had mostly had discussions with Dr Mapa, and had not visited Dr Mapa's practice since April 2021. Dr Samarasekera had no specific concerns about Dr Mapa.
The delegates questioned Dr Mapa about patient assessment. In its reasons, the delegates said at p 21: We consider that Dr Mapa's responses as to how she would assess someone with a headache and fever were concerning. She also seemed to move on pretty quickly to checking a patient's blood pressure, assuming this might be the problem rather than considering a broader differential which should include rare but potentially high risk diseases such as meningitis and encephalitis. We therefore consider that there is a significant potential risk of a deficit in the standard of care and knowledge that is currently practised by Dr Mapa. We became concerned that on Dr Mapa's description of assessments of patients with symptoms such as fever and headache, inadequate accommodation of current standard COVID safety protocols were being implemented in her consulting practice, for instance if she saw patients with fever in person in her practice and consulting rooms. Clinical skills and COVID precautions When Dr Mapa described how patients could ring her for advice, but that she did not conduct telehealth consultations, we noted to Dr Mapa that with respect if she was giving patients advice on the phone, then it seemed to be no difference to telehealth consultations. Dr Mapa said on the phone, she didn't ask about headaches or chest pain. If they had those, they had to come and see her. On the phone, she might ask if they still had diarrhoea, or were vomiting, or if their knee still hurt. If someone did ring with a headache and fever, she would ask them to take their temperature, take two Panadol and ring in half an hour. If there was no fever, she would ask about whether they took anti-hypertensives, and ask them If there was no fever, she would ask about whether they took anti-hypertensives, and ask them to get their blood pressure checked if they did not have a monitor at home by coming to her or going to the chemist. For patients with fever, she would see them. Dr Mapa appeared to us to hold a view that if she did not charge for the phone calls and advice, then it was not a telehealth consultation. Dr Mapa described to us how she would manage a patient with a headache and fever (to us this indicated possible COVID symptoms). Leaving them in the waiting room whilst she sees her booked patient was very worrying. She described how she would see the patient in a consulting room, and when we asked about COVID, she said she may take a swab to be tested for COVID or send them for a test. Her advice for the patient was to avoid seeing vulnerable people whilst the patient awaits the result of their swab. This was very worrying, as the standard government and RACGP advice would be for the patient to seek a test in a designated facility rather than attend the general practice, and then to go straight home and isolate until the result is available. We were also concerned that although Dr Mapa mentioned wearing a mask and a plastic protective disposable dress (disposable gown) when seeing patients with a temperature (a fever), she did not clearly describe routinely using full PPE equipment such as eyeshield goggles. Dr Mapa did not seem to consider implementing the standard option of recommending these patients attend for COVID testing elsewhere, getting their results before seeing her and giving safety netting advice about when to seek more urgent care via hospital which is set up to keep potential COVID patients away from others. Her description of how she would clean her consulting room after such a patient was similarly very concerning, particularly given her practice was in a current hotspot for COVID cases. Her description included that she would spray Glen20 and change the pillow and bed linen. She would wipe surfaces. We are therefore concerned that there is a significant potential risk for her patients, herself, her husband and the wider local community, due to lack of knowledge in respect of arrangements for general practice during the pandemic. There is a significant risk of transmission if Dr Mapa is seeing patients who are potentially COVID positive, and taking swabs, particularly if inadequate PPE is worn.
The delegates established that Dr Mapa had not attended any Royal Australian College of General Practitioners (RACGP) webinars on COVID. Dr Mapa told the delegates that colleagues overseas had sent her research papers and information by email. The delegates said, in its reasons, at page 23, that they had formed the view that: there is a significant risk that Dr Mapa currently lacks appropriate knowledge and up to date standards with respect to COVID safety in the Australian general practice context.
Further, in relation to COVID, the delegates said, at page 23 of its reasons: We asked if Dr Mapa had received the very recent message from the RACGP the weekend before last to take particular care with respect to consulting in person, and that telehealth consulting should be relied on even more as a form of consultation if practitioners could, given the current outbreak of COVID. She said she had not received the message from the College. Our concern is that even though Dr Mapa is a Fellow of the RACGP, and on paper her CPD learning and knowledge on COVID precautions would appear to be up to date, in practice, there is a significant potential risk that it is deficient. In the context of a pandemic, this could potentially pose significant risk to the health and safety of patients and the wider public.
The delegates agreed with the assessors who conducted the Performance Interview that, in working as a solo practitioner, Dr Mapa's ability to develop and maintain standards of communication, medical records and clinical competency may have been adversely affected. Dr Mapa confirmed to the delegates that it was her preference to continue to work in a solo practice.
The delegates said, at p 23 of its reasons: We consider that there are serious and significant risks posed to the public given the risks identified with respect to Dr Mapa's clinical performance and knowledge. We consider that there is a significant and serious risk that Dr Mapa does not currently have the necessary standard of practice, knowledge and understanding to ensure the public's health and safety is protected.
With reference to Ms McMillan's report, the delegates said, among other things, at p 25 of the delegates' reasons: We consider that this assessment indicates that there is a risk that Dr Mapa potentially has a mild cognitive impairment that warrants appropriate further investigation and repeated assessment, in order to mitigate potential impact on Dr Mapa's practice of medicine. We consider that there is a further risk that the potential negative impact of executive dysfunction on accepting feedback and novel problem solving could pose challenges for Dr Mapa's appreciation of her identified performance deficits and potential health concerns.
The delegates noted that Dr Mapa said in the hearing that she does not consider that she has any cognitive impairment (see p 26 of the delegate's reasons).
The delegates noted that Dr Mapa had consented to conditions being applied to her registration in the context of an Impaired Registrants Panel convened on 1 February 2021. The nine conditions imposed are as follows: Practice Conditions 1. To practise under category C supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. a. The terms of the Council's Compliance Policy - Supervision are varied to require the practitioner to: i. meet with her Council-approved supervisor weekly for at least one hour ii. authorise the Council-approved supervisor to forward reports to the Council (in a Council-approved format) every month b. At each supervision meeting the practitioner is to review and discuss her practice with her approved supervisor with particular focus on: • Medical record reviews • Patient assessment and management c. To authorise the Medical Council of NSW to provide approved supervisors with a copy of the full conditions on the practitioner's registration. Private Conditions 2. Not to prescribe for self-medication. 3. To attend for treatment by a general practitioner of her choice, at a frequency to be determined by the treating practitioner. The practitioner is to: a. authorise the treating practitioner to inform the Medical Council of NSW of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change) b. provide the Council with the professional details of the treating practitioner. 4. To attend for treatment by a geriatrician of her choice, at a frequency to be determined by the treating practitioner. The practitioner is to: a. authorise the treating practitioner to inform the Medical Council of NSW of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change) b. provide the Council with the professional details of the treating practitioner. 5. The extent of her professional medical duties is to be guided by her health status and the advice of her treating and Council-appointed practitioners. 6. To attend for review by a Council appointed psychogeriatician on a 6 monthly basis or as otherwise directed by the Medical Council of NSW. 7. To attend for neuropsychometric testing by a Council appointed psychologist, as directed by the Medical Council of NSW. 8. To attend a Medical Council of NSW Review Interview on a 6 monthly basis or as otherwise directed by the Council. 9. To authorise the Medical Council of NSW to forward copies of the Impaired Registrants Panel report and any subsequent Council Review Interview or other reports and any other information relevant to her health and treatment to the Council-appointed practitioners and to her treating practitioners.
Dr Mapa referred herself to Dr Christina Norris, a geriatrician. Dr Norris provided Dr Mapa with a letter dated 30 June 2021, which recorded that Dr Mapa and Dr Norris had engaged in a telephone consultation. Dr Norris said that she had 'performed brief cognitive testing and frailty screening'. The cognitive testing 'with a 4AT revealed a score of 0 (normal)'. Frailty screening with a reported Edmonton Frailty Scale revealed a score of one with a Clinical Frailty Scale score of 1 (fit, not frail). Dr Norris did not administer specific tests in relation to executive function, as Ms McMillan did. Dr Norris' report was not a report of a detailed, comprehensive assessment.
Dr Mapa also obtained a letter dated 15 January 2021 from Associate Professor Dennis Cordato, a neurologist. Associate Professor Cordato said, in his letter, that he had known Dr Mapa for 25 years and has shared many patients with her during that time. Associate Professor Cordato said that, from the referrals he received from Dr Mapa, 'and in the way I have observed her in the management of her patients', it was his professional opinion that Dr Mapa was a capable and competent medical practitioner. Associate Professor Cordato said, in his letter: On my review of Dr Mapa today, I found no evidence whatsoever of any cognitive concerns. She demonstrated normal cognitive performance and had excellent insight into the care and management of patients.
Associate Professor Cordato did not disclose what constituted his 'review' of Dr Mapa. It is not clear whether he met with Dr Mapa or administered any tests. Associate Professor Cordato's letter is less than a page long. It is not a formal report of an independent, comprehensive assessment.
The delegates said, at p 27: We were concerned that it appeared Dr Mapa had self-referred to each of these specialists. This would be in breach of one of her conditions. Dr Mapa said she had self-referred because all of the specialists said she could.
It may be that the delegates were of the view that self-referral by Dr Mapa was in breach of condition 3 imposed on 1 February, set out at [27], above. This interpretation is contestable, and, in considering this stay application, I have assumed that it is erroneous.

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

Mapa v Medical Council of New South Wales

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Judgment (13 paragraphs)

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