Medical Council of New South Wales v Schwartz - [2022] NSWCATOD 80 - NSWCATOD 2022 case summary — Zoe

NSWNSWCATOD

Medical Council of New South Wales v Schwartz

[2022] NSWCATOD 80

NCAT Occupational|2022-06-30

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At a glance

Source facts

Court

NCAT Occupational

Decision date

2022-06-30

Source

Original judgment source is linked above.

Judgment (31 paragraphs)

[1]

Background

From 17 November 2015 until 18 June 2021, when Dr Schwartz's registration as a Medical Practitioner was suspended, his registration was subject to various conditions in relation to conscious sedation of patients.
By a decision in s 150 proceeding dated 23 January 2016, the following condition was placed on Dr Schwartz's registration: Not to administer any conscious (intravenous) sedation or monitor any sedated patients. a. The practitioner may perform procedures which require conscious sedation when the administration of the sedation and monitoring of the patient is undertaken by an anaesthetist approved by the Medical Council of NSW, who is responsible for the pre-sedation assessment of the patient and is present for the entirety of the procedure and the patient's recover from sedation. b. Dr Schwartz is to maintain a logbook of all procedures performed under conscious sedation listing the date and nature of each procedure, the patient's name and the name and signature of the anaesthetist present during the course of the procedure. a copy of the logbook is to be forwarded to the Council within 7 days of the end of each calendar month.
Dr Schwartz's view was that this condition only prohibited intravenous sedation, but the s 150 panel did not accept Dr Schwartz's interpretation. On 12 December 2017, the condition that he not administer any conscious (intravenous) sedation without a sedationist being present was amended to ensure that all routes for administration were precluded. The condition then read: Not to administer any conscious sedation (by any route) or monitor any sedated patients. a. The practitioner may perform procedures which require conscious sedation when the administration of the sedation and monitoring of the patient is undertaken by an anaesthetist approved by the Medical Council of NSW, who is responsible for the pre-sedation assessment of the patient and is present for the entirety of the procedure and the patient's recover from sedation. b. Dr Schwartz is to maintain a logbook of all procedures performed under conscious sedation listing the date and nature of each procedure, the patient's name and the name and signature of the anaesthetist present during the course of the procedure. a copy of the logbook is to be forwarded to the Council within 7 days of the end of each calendar month.

[2]

Dr Schwartz's evidence

Dr Schwartz admits that he administered Fentanyl (and sometimes Tramal, pethidine or morphine) intramuscularly, but considered this to come within the definition of pain relief, rather than amounting to conscious sedation.
During the s150 hearing Dr Schwartz initially told the Council delegates that he uses a local anaesthetic but does not use any sedation to help the patient relax or prepare them for the surgery. Later he said he uses "narcotics, pain relief". When asked what kind of narcotics he uses, Dr Schwartz said: It depends if they have any allergies and it also depends on if they have any special requirements but in general I have a listing. So generally Fentanyl or sometimes Tramal sometimes pethidine sometimes morphine but in general most of my experience is with Fentanyl.
He said that two nurses are present during the procedure - a scrub nurse and a general theatre nurse. He did not mention a sedationist.
In his 7 October 2021 statement, Dr Schwartz continued to deny that he had breached the condition: "Since the imposition of the conditions, I have not sedated a patient myself and have not needed to use a sedationist. … In terms of the drugs that I did administer, Fentanyl was administered as pain relief and the dose dependent on the patient's weight. I asked the patient for their weight at their consult and if they did not know, I would then weigh them on the scales in my clinic. On 5 August 2020, I had an initial consultation with (name deleted) regarding transconjunctival blepharoplasty and I said to her that I could not sedate her myself, but raised with her that she may likely feel anxiety and discomfort from operating around the eye or in the lower fomix. I said to (name deleted) that I could only offer pain relief and an antihistamine that would enhance the anaesthetic effects of the painkiller, so that the patient would be able to tolerate the surgery better. (Name deleted) advised that she would like to continue with the procedure, which was performed on September 2020. The medication administered pre-operatively on the date of the procedure was Fentanyl 100 ug IMI promethazine 50 mg. In my view, based on my teachings, the combination of medication is not considered sedation, but the effects of the pain relief are enhanced."
Medical records produced by Dr Schwartz to the Council include the following: (i) 23 July 2020: analgesic IM Fentanyl 50mcg-100mcg with 100mcg circled for patient A; (ii) 17 February 2021: IM Fentanyl 50-100mcg with 100mcg circled for patient B; (iii) 17 September 2020: IM Fentanyl 50mcg-100mcg with 100mcg circled for Patient C and promethazine 50mg was also administered; (According to the Council it is noteworthy that the Medication Order does not show that promethazine was administered and only shows Fentanyl circled.) (iv) 19 September 2019: medical records for Patient D who underwent a liposuction procedure with Dr Schwartz for "love handles" and Fentanyl 100mcg injected into buttock; (v) 6 August 2020: another liposuction procedure of the stomach for Patient D where Fentanyl 100mcg was injected into buttock; (vi) 6 August 2020: IM Fentanyl 50mcg-100mcg with 100mcg circled for Patient D; (vii) 19 September 2019: IM Fentanyl 50mcg-100mcg with 100mcg circled for Patient D; (viii) 15 August 2019: IM Fentanyl 50mcg-100mcg with 100mcg circled for Patient E; (ix) 15 August 2019: IM Fentanyl 50mcg-100mcg with 100mcg circled for Patient F.
Dr Schwartz's counsel submitted that Dr Schwartz "did not intend to breach this condition" and "he understands from the evidence adduced that he has inadvertently done so and will not do so in the future". Dr Schwartz's counsel submitted that it was obvious from Dr Schwartz's statement that he did not intend to breach the condition. That is the case if we accept the proposition in an article attached to Dr Schwartz's statement, that the combination of fentanyl and promethazine is not considered sedation. However, the article is cited to support the proposition that anti-histamines are not sedatives. This article is focused on the use of sedatives and anxiolytics in the geriatric outpatient setting for sleep disorders and anxiety. It is not relevant to procedural sedation.
There is no direct evidence of intention to breach the condition, but Dr Schwartz has 40 years' experience as a GP and has been practising for a considerable time in the area of cosmetic procedures. There has been a condition on his registration since 2017 that he not administer conscious sedation without a sedationist present. In those circumstances he should have known, or have taken steps to find out, exactly what conscious sedation means.

[3]

Expert evidence

Dr Schwartz's expert, Dr Boffa, and the Council's expert, Dr Harrison, agree that Dr Schwartz's use of opioids (such as fentanyl) together with promethazine (such as Phenergan) to potentiate the effects of sedation, is conscious sedation. (Potentiate is a medical term meaning to make more effective or more active.)
Dr Harrison provided the following definition of conscious sedation: ANCZA publish a document called PS09 (attached to this report), which is the base document on sedation referred to by the Australian Health Practitioner Regulation Agency (Ahpra), all state bodies and most other medical colleges. It says: "Conscious sedation is defined as a drug-induced depression of consciousness during which patients are able to respond purposefully to verbal commands or light tactile stimulation. Interventions to maintain a patent airway, spontaneous ventilation or cardiovascular function may, in exceptional situations, be required. Conscious sedation may be achieved by a wide variety of drugs including propofol, and may accompany local anaesthesia. All conscious sedation techniques should provide a margin of safety that is wide enough to render loss of consciousness unlikely."
The above definition is sourced from a publication titled "Guideline on sedation and/or analgesia for diagnostic and interventional medical, dental or surgical procedures" PG09(G) 2014 published by the Australian and New Zealand College of Anaesthetists. Administration can be by any route, oral, IVI, IMI, nasal or even rectally.
The document (PS09) also contains the following paragraphs: "Practitioners who administer procedural sedation and/or analgesia should be aware that the transition from complete consciousness through the various depths of sedation to general anaesthesia is a continuum and not a set of discrete, well-defined stages. The margin of safety of drugs used to achieve sedation and/or analgesia varies widely between patients and loss of consciousness with its attendant risk of loss of protective reflexes may occur rapidly and unexpectedly."
When asked to comment on Dr Schwartz's use of Fentanyl, Tramal, Pethidine or Morphine, Dr Harrison said in his report of 2 February 2022 that: These drugs and doses are typed onto Dr Schwartz's form and it is the same for all his forms that are in the correspondence I have seen. I suspect he had those names prewritten and presume he had a protocol for each, but would circle only one drug for each patient. They are all big doses and in some patients, they might result in decreased respiratory effort. I will address all 4 drugs in order. Fentanyl is a potent short-term analgesic that does not help with postoperative pain, but is the standard opioid used in conscious sedation for procedures that are painful but when the postoperative pain will be less severe. Tramal is a less potent drug but can have severe side effects especially in those with kidney disease or prostaglandin issues. Pethidine has been rarely used for the past 15 years. It has occasional but severe side effects especially fitting and has no benefits over morphine at all. Morphine is a potent analgesic and its effects are much longer than fentanyl, so it would be used for those patients when the pain is expected to be present for some hours after the operation.
Dr Harrison identified the dangers of prescribing Fentanyl and Phenergan to Patient C. The amount and combination of these two drugs is in my opinion a dangerous way to give conscious sedation but it is sedation. The doses administered are large doses as I will explain below and the method, IMI injection, does not allow for any irritability (sic titratability).
Dr Harrison goes on to explain why these drugs are dangerous: It is dangerous because different patients have different physiological and pharmacological responses to drugs. A good way to understand this is to remember that the "bell curve" is applicable to all patients and different patients sit in different parts of the bell curve. Thus, if we give a standard dose of a drug to a patient, 5% of patients might have no effect to a drug, 90% have a good effect, but, and it is an important but, 5% will be effectively overdosed. It is impossible to totally predict how a particular patient will react, which is why small, titrated IVI doses of sedative drugs are the safest way to conduct sedation. What this means is that whilst for most patients the doses chosen will just cause significant analgesia and sedation, in a small percentage of patients they will cause deep sedation.
According to Dr Harrison, small titrated intravenous doses of sedative drugs are the safest way to conduct sedation. Dr Harrison finds it 'frankly unbelievable' for Dr Schwartz to deny the sedative effects of Promethazine (Phenergan).
In Dr Boffa's opinion, there is a substantial risk to patients if Dr Schwartz continues to use "conscious sedation during surgical procedures when it was previously demonstrated to him to be unsafe in a GP setting". Dr Boffa advises against using sedation in a general practice setting unless a trained sedationist is present. He goes on in his report to say that: Having already been admonished, repeat use of sedation should not have occurred, but it is not clear whether Dr Schwartz had in the meantime tightened up on staff training making him more confident.
There is no evidence that Dr Schwartz has tightened up on staff training or that improved staff training is equivalent to providing a sedationist.

[5]

Consideration

We find that Dr Schwartz has breached the amended condition on his registration by administering conscious sedation to patients without an approved anaesthetist being present. During the s 150 hearing, he initially denied using any sedation but later admitted to using "pain relief." He considered fentanyl to be a kind of pain relief and promethazine to merely enhance the effects of pain relief.
Dr Harrison's unchallenged opinion is that prescribing Fentanyl and Phenergan together is dangerous. That combination will induce deep sedation in approximately 5% of patients. In other words, one in every twenty patients receiving that combination of drugs is at risk. We do not accept the characterisation of Dr Schwartz's counsel that only "a few" patients would be affected. We repeat that there is no requirement for any person to have suffered actual harm.
Dr Harrison was also asked to comment on Dr Schwartz's use of Fentanyl and other analgesics by themselves to achieve sedation. He said Fentanyl "is the standard opioid used in conscious sedation procedures that are painful but when the postoperative pain will be less severe".
Based on that statement, and the expertise of the members of the Tribunal, the administration of Fentanyl, Tramal, Pethidine or Morphine, by themselves, has the potential to be conscious sedation. Transition from complete consciousness to sedation to loss of consciousness is a continuum with interindividual variability in response. Fentanyl is an opioid analgesic. A dose of 100mcg is clinically significant as it is equivalent to morphine 10mg, and pethidine 75mg. The principal actions of therapeutic value are analgesia and sedation. Dr Schwartz should have this knowledge of the pharmacology of these drugs. Consequently, not only was Dr Schwartz administering conscious sedation when using a combination of fentanyl and promethazine, he was using conscious sedation when administering fentanyl alone. Even if that is not accepted, Dr Schwartz was undoubtedly in breach of the condition when administering Fentanyl and Phenergan together.
We agree with Dr Harrison that it is not credible given Dr Schwartz's training and experience, that he denies the sedative effects of promethazine. Dr Schwartz continues to deny that what he was doing came within the definition of conscious sedation. His counsel submits that it was inadvertent and that any breach of the condition was not intentional. We are not satisfied on the basis of all the evidence, that that inference can be drawn. Nor are we satisfied that placing a condition on Dr Schwartz's registration would safeguard the health and safety of future patients.
Dr Schwartz's counsel emphasised that the original condition only specified intravenous sedation and Dr Schwartz did not consider that he was in breach of that condition. Even if that is accepted, the amended condition made it clear that he was not to administer any conscious sedation (by any route) or monitor any sedated patients without the presence of a sedationist. Dr Schwartz is in breach of that condition.
These proceedings come before the Tribunal without any complaint having been made by a patient or any particulars having been provided. That is how the legislative scheme is designed. It is not relevant on appeal for us to consider the time taken to investigate these matters or the fact that no formal complaint has been made. Our role is merely to consider the s 150 panel's decision and come to our own conclusion based on the relevant evidence before us.
In accordance with these conclusions, it is appropriate to take some action for the protection of the health and safety of Dr Schwartz's future patients. We do not agree with Dr Boffa that the imposition of further conditions will protect Dr Schwartz's patients. When giving that opinion, Dr Boffa was not aware that Dr Schwartz had failed to comply with such a condition in the past. Given the denial in his statement that the combination of fentanyl and promethazine is conscious sedation, we have no confidence that he will comply with such a condition in the future. The risk to the health and safety of future patients means that urgent action is required.
On this basis alone, we confirm the decision of the Council to suspend Dr Schwartz's registration with effect from 5 pm on 18 June 2021.
Below we briefly address the other concerns the PRP highlighted, which the Council addressed in the s 150 hearing. We do not consider those matters, either alone or in combination, to justify suspension of Dr Schwartz's registration.

[12]

Expert evidence

Dr Wilson expressed the following view about this conduct: The lack of description of the lesions and incomplete labelling of the specimen pathology in March 2021 could have led to confusion about what part of the body the sample was taken from and could have adversely affected management. The lack of comprehensive documented treatment plan after each excision would have made it difficult for another doctor to easily continue management.
When giving evidence, Dr Wilson reiterated that there was not enough information in the clinical notes to determine whether this patient could be at risk. In particular, when a lesion is incompletely excised one would expect the treating doctor to record any follow up in the notes.
As to the specimen being unlabelled as to site, Dr Wilson agreed that confusion would only arise if more than one specimen had been taken and both were not from the left lateral temple. As this was not the case here, there was no real potential for confusion. It was put to Dr Wilson that there was no evidence of any adverse outcome from any of these practices. While she agreed with that proposition, she emphasised that we simply do not know the outcomes.
Dr Wilson's comment about poor documentation was as follows: Poor documentation is known to increase risk of hospital admission, failure of follow up, increased costs and medication errors. Dr Schwartz's poor documentation potentially leaves patients at risk. It is not always clear what treatment patients have had and Dr Schwartz doesn't appear to remember himself what was done and not done. The notes make it difficult for other practitioners to take over care and this means that a task needed to be undertaken may either not be undertaken or unnecessarily repeated.
Dr Wilson's overall opinion about the management of this patient was as follows: Inadequate management of skin lesions leave patients at risk of potentially serious complications including untreated skin cancer with risk of local and distant spread.
When questioned about this opinion Dr Wilson agreed that, excluding the unlabelled pathology request and the brevity of Dr Schwartz's notes, there was no evidence of inadequate management of this patient's BCCs.

[29]

Costs

The Council has been successful in these proceedings and has applied for Dr Schwartz to pay its costs. Dr Schwartz has also applied for costs on the basis that the Council should not have pursued the concerns other than breach of the condition on Dr Schwartz's registration.
Clause 13 of Schedule 5D of the National Law gives the Tribunal power to award costs. 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. (3) The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the Registrar of the District Court must enter judgment for the amount unpaid together with any fees paid for filing the certificate. (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013.
In the normal course, the successful party is entitled to their costs if there is no disentitling conduct. Defending the Council's decision on each basis on which it was decided is not disentitling conduct. Dr Schwartz should bear the Council's costs of these proceedings as agreed or, failing agreement, as assessed under the Legal Profession Uniform Law Act 2014 (NSW).

Parties

Applicant/Plaintiff:

Medical Council of New South Wales

Respondent/Defendant:

Schwartz

Legislation Cited (1)

Legal Profession Uniform Law Act 2014(NSW)

Cases Cited (8)

Legal principles

In accordance with s 3A of the National Law, when exercising any functions under that legislation, "the protection of the health and safety of the public must be the paramount consideration".
Section 150 gives the Council the following powers: 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; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or (c) by order impose on a student's registration the conditions the Council considers appropriate.
Dr Schwartz's right to appeal the s 150 decision is set out in s 159(1)(a) of the National Law: 159 Right of appeal [NSW] (1) A person may appeal to the Tribunal against any of the following decisions of a Council for a health profession - (a1) against a reprimand by the Council for the health profession under Division 3; or (a) against a suspension by the Council for the health profession under Division 3 or a refusal to end a suspension; or (b) against conditions imposed by the Council for the health profession on the person's registration under section 127AA or Division 3 or 4 or the alteration of the conditions by the Council; or (c) against a refusal by the Council for the health profession to alter or remove conditions imposed by the Council under Division 3 in accordance with a request made by the person under section 150I; or (d) against a decision by the Council for the health profession to give a direction or make an order in relation to the person under section 148E; or (e) against a refusal by the Council for the health profession to alter or remove conditions imposed on the person's registration, or to end a suspension, imposed under Division 4 in accordance with a request made by the person under section 152K. Note - An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. (2) An appeal may not be made in respect of a request by a person that is rejected by a Council because it was made during a period in which the request was not permitted under section 150I or 152K. (3) The appeal is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council, may be given.
As set out in s 159(3), the appeal is to be determined on the evidence before NCAT, not on the evidence before the Medical Council's delegates at the s 150 hearing. The Tribunal's powers on appeal are set out in s 159C: 159C Tribunal's powers on appeal [NSW] (1) On an appeal against a decision of a Council, the Tribunal may by order - (a) confirm the decision; or (b) set aside the decision; or (c) set aside the decision and make a new decision (being a decision that the Council could have made). (2) The Tribunal's order must not cause a suspension or conditions imposed by a Council to have effect beyond the day on which a related complaint about the person is disposed of.
As s 150 is expressed in the alternative, NCAT must suspend or impose conditions if satisfied that it is appropriate to do so either for the protection of the health or safety of any person or if the action is otherwise in the public interest. In Medical Council of New South Wales v Smithson [2021] NSWCA 53 at [20] the Court of Appeal (Payne JA, Simpson AJA and Garling J) had this to say about the two limbs of s 150: 2. The subject matter, scope and purpose of s 150 makes clear that it is a protective provision with two independent limbs. The touchstone for the exercise of the Council's role under s 150(1) to make an order suspending the practitioner's registration or imposing conditions on it is that the Council be satisfied that it is appropriate to do so for (i) the protection of the health or safety of any person or persons (the first limb), or (ii) that the action is otherwise in the public interest (the second limb): Kirby at [15]; Ghosh at [5]. The two limbs may overlap but the public interest is not subsumed in the first limb: see Pharmacy Council of NSW v Ibrahim [2020] NSWSC 708 at [35]. The two limbs are disjunctive; satisfaction of either will suffice to trigger the obligation imposed by s 150.
As to the subject and scope of proceedings under s 150, they are not disciplinary proceedings. They are purely protective in character. As the Court explained in Smithson at [20]: 3. The proceedings are not disciplinary and are not necessarily referable to a complaint. The National Law otherwise makes provision for dealing with complaints against registered health practitioners: see Div 3 Subdivs 2-6. The function of a s 150 hearing is purely protective in character: Kirby at [15]; Ghosh at [5]. By s 150D, a Council must, after taking action under s 150(1) (except in the case of impairment), refer the matter to the Health Care Complaints Commission ("HCCC") to be investigated as a complaint.
As this is a new hearing, NCAT must identify the nature of any risk to the health and safety of the public, the chances of the suggested harm being realised and the consequences if the suggested harm is realised. There is no requirement for any person to have suffered actual harm: Smithson at [20].
Identifying risk to the health or safety of any person based on a person's past conduct is a relatively straightforward task. Identifying risk to the public interest is more difficult. The meaning of the expression "the public interest" depends on "the subject, scope and purpose of the enactment in which it appears": Hogan v Hinch (2011) 243 CLR 506 at [31], per French CJ; at [69] per Gummow, Hayne, Heydon, Crennan Kiefel and Bell JJ; O'Sullivan v Farrer (1989) 168 CLR 210 at 216.
Harrison AsJ listed considerations relevant to "the public interest" in the context of s 150 in Pharmacy Council of NSW v Ibrahim [2020] NSWSC 708 at [32]: . . . in the context of ss 3 and 3A of the National Law, the "public interest" referred to in s 150 includes considerations of maintaining public confidence in the scheme for regulating health practitioners, and the "competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession": see Hanna at [18].
Harrison AsJ explained at [35] that the public interest is a broader concept than the protection of health and safety. It covers "wider community interests such as the standards to which human conduct is to be held".
In a similar legislative context, the Supreme Court of Victoria held in Medical Board of Australia v Leow 2019 VSC 532 at [78], that the equivalent provision to s 150 is: …designed to operate for an interim period, until an investigation or disciplinary proceeding with respect to the medical practitioner is able to be concluded. The purpose of immediate action is to put measures in place to protect against, or ameliorate, harm pending the determination. It is not an end in and of itself.
More recently, in Pridgeon v Medical Council of New South Wales [2022] NSWCA 60, the Court of Appeal (Bell CJ, White JA and Harrison J) held at [68] that the "public interest" should be understood as a reference to the public interest in the protection of the public's health and safety. The content to be given to that protection must take its meaning from the conduct of the practice of medicine in respect of which a medical practitioner's registration is granted. At [70], the Court emphasised that s 150 should only be invoked as an emergency power where the circumstances are urgent.

Relevance of the s 150 decision

In Ibrahim v Pharmacy Council of NSW [2019] NSWCATOD 187 at [21], NCAT made the following comment about whether NCAT should take into account the Medical Council's reasoning in the s 150 decision: On one view it is not necessary for us to consider the reasoning of the delegates of the Council because we are considering the matter afresh. However, the respondent embraced the reasoning of the delegates, and for this reason it is necessary that we refer to it.
The Medical Council provided us with a copy of the s 150 decision. As we are conducting a new hearing, and fresh evidence is admissible, we are not bound by the Council's factual findings or reasoning. We must come to our own view on the evidence before us. For that reason we have treated the Council's s 150 decision as an aide memoir rather than as evidence in the proceedings.

Dr Schwartz's evidence

Dr Schwartz did not give oral evidence before NCAT. His evidence consists of the responses he gave when questioned by the Council's delegates on 18 June 2021 and the contents of a statement dated 7 October 2021 with annexures, which he provided to the Council. Dr Schwartz did not seek to tender this statement but Council included it in their tender bundle and we admitted it into evidence in the Council's case. At the beginning of the hearing, Dr Schwartz's counsel sought an adjournment to get instructions on whether he was going to call Dr Schwartz to give evidence. Dr Schwartz did not give evidence and his counsel told the Tribunal that he had advised his client of the consequences of not doing so.
When the hearing resumed, Dr Schwartz's counsel submitted that this case was analogous to the circumstances in Withyman v State of NSW [2010] NSWDC 186 at 227 where Elkaim SC DCJ held that: 227. Both the plaintiff and Ms Blackburn submitted that an adverse inference should be drawn against the first defendant for its failure to call Mr Roxborough and Mr Neal to give oral evidence. In respect of the plaintiff the first defendant said that no such inference was available because the first defendant had tendered statements from the two potential witnesses. Support for this submission is to be found at paragraph 71 in the judgment of Sackville J in Singh v Minister for Immigration (2001) 109 FCR 152. In addition, I was referred to paragraph 1215 in the seventh edition of Cross on Evidence. I thought there was some substance in these submissions but only to the extent of the material covered in the statements of the witnesses that had been tendered.
The Council sought to distinguish Withyman because in that case two witnesses who had provided statements did not give evidence. In the present case it is the appellant, not a witness, who has done so.
We accept that by tendering Dr Schwartz's statement, Council did not intend that he would become a witness in their case. As a model litigant it was their intention to provide the Tribunal with all the material in their possession which is relevant to an issue in dispute. We agree that Dr Schwartz's counsel cannot characterise the decision to tender that statement as a forensic decision to fore-go any opportunity to cross-examine. It was Dr Schwartz's decision not to give tender his statement.
At the s 150 hearing, Dr Schwartz spoke to the Council delegates by AVL and responded to questions for about two hours from 12.31 pm to 2.27 pm. At that time, he left to pick up his children. He said he would return but did not do so.

(2011) 243 CLR 506

(1989) 168 CLR 210

(2001) 109 FCR 152

[2020] NSWSC 708

[2022] NSWCA 60

Cited By (1)

Sadri v Pharmacy Council of New South Wales