Professions and Trades - Medical and related professions - Discipline, and removal from and restoration to register - Procedure, evidence and appeal - Tasmania - Appeal to Supreme Court - Nature of appeal - Further evidence.

Medical Practitioners Registration Act 1996 (Tas), s61.

Fernando v Medical Complaints Tribunal (No 2) [2003] TASSC 139; (2003) 12 Tas R 337, followed.

R v Beldan [1986] 2 Qd R 179, distinguished.

Judgment Number: [2007] TASSC 43

THE MEDICAL COUNCIL OF TASMANIA v ULHAS SRINIWAS LAD

1 This is an appeal from a decision of the Medical Complaints Tribunal ("the Tribunal"), instituted pursuant to the Medical Practitioners Registration Act 1996 ("the Act"), s61(2)(b). On 13 October 2006, the Tribunal found the respondent, a medical practitioner, guilty of professional misconduct in respect of two patients whom it referred to as AB and CD. On 27 November 2006, the Tribunal imposed separate penalties in relation to those patients. In relation to the misconduct concerning AB, the Tribunal suspended the respondent from practice until 30 June 2007, imposed a condition preventing him from having female patients after that date, and made certain other orders. The appellant considers that those penalties were inadequate in the circumstances, and has appealed in respect of the decision to impose them. The appeal does not relate to the misconduct concerning CD, which resulted in a fine.

2 A question has arisen as to whether, on the hearing of this appeal, I may or should permit the appellant to adduce evidence as to whether or not there is or was a shortage of general practitioners, by reason of which the suspension or striking off of the respondent was likely to have an adverse impact on his patients, the practice in which he worked, or the community in which he worked. Counsel for the appellant wishes to rely on three affidavits relating to that issue. Counsel for the respondent has submitted that I may not or should not receive that evidence.

3 The affidavits on which the appellant wishes to rely were sworn by Mr Jackson, who appeared as counsel assisting the Tribunal, a Dr Williams, and a Mr Barns. I have taken all three of them as read de bene esse so that I can determine whether or not the appellant should be allowed to rely upon them. Mr Jackson has been cross-examined on his affidavit on the voir dire.

4 There is authority for the proposition that the impact of a medical practitioner's suspension from practice is a relevant matter for a disciplinary body to take into account when deciding upon a penalty. In Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545, the appellant was a medical practitioner who was aggrieved by an order suspending his registration for six months. At 557 Doyle CJ, with whom Williams and Martin JJ agreed, said:

"... while I would not regard the impact on Dr Craig's patients as irrelevant, it is again a matter of limited weight when considering what is required in the public interest."

5 Under the Act, s52, after the Tribunal has held a formal enquiry into a complaint concerning the conduct of a medical practitioner, the Tribunal may order that the practitioner's name be removed from the register, suspend the practitioner's registration totally or partially for a period not exceeding twelve months, impose a fine, impose a condition on the practitioner's registration, require the practitioner to take or refrain from taking specified action, or caution or reprimand the practitioner. As is the case for disciplinary powers concerning other professions, any such orders must be made for the purpose of protecting the public, and maintaining the integrity of the profession, rather than for the purpose of retribution: Craig (supra) at 556; Adamson v Pharmacy Board of Tasmania [2004] TASSC 88; Law Society of Tasmania v Turner [2001] TASSC 129; (2001) 11 Tas R 1 at 24. It is in that context that the impact of a medical practitioner's deregistration or suspension on patients, the medical profession, and members of the public is a relevant factor.

6 When submissions relating to penalties were made to the Tribunal, counsel for the respondent tendered dozens of references relating to him, and over 300 pages of letters, emails and other messages received in support of him. There were passages in several of the references asserting or suggesting that there was a shortage of general practitioners affecting the Kingston or Kingborough area in which the respondent practised, and that his patients or the local community generally would be disadvantaged if he did not continue in practice. The material tendered also contained information that some medical practices in the relevant area had ceased to accept new patients. This material was made available to Mr Jackson as counsel assisting the Tribunal. In his submissions to the Tribunal as to penalty, Mr Jackson quoted extensively from the judgment of Doyle CJ in Craig, and later said the following:

"You will no doubt also be urged to take into account the impact that removal of Dr Lad's right of practice will have on those who depend upon him for medical services and those who practise with him and in particular of course his wife Dr Geeta Lad. In some cases it might be appropriate to have regard to the impact of such an order on the general community or that part of it which depends upon the practitioner for medical services. In this case, in my submission, those considerations ultimately have little if any weight because they have to be balanced against the seriousness of the conduct complained of and found proved ...

The fact that Dr Lad's removal from practice will impose a heavy burden on De Geeta Lad, the fact that his removal from practice will make it difficult for patients to find alternative medical services, neither of those facts in my submission sufficiently outweigh [sic] the seriousness of the allegations that have been made to justify allowing Dr Lad to continue to practise with nothing more than a restraint upon the gender of the patients that he sees."

7 Subsequently, counsel for the respondent made submissions to the Tribunal as to penalty. At a late stage in those submissions, he said the following:

"... an order by which Doctor Lad was prohibited from practising altogether would be an order which would have a severe impact, in my submission, on the patients and on the community in the Kingborough area generally."

After referring to a number of the references that touched on the subject of a shortage of general practitioners, he said the following:

"It's my submission that it is also notorious that there's a shortage of general practitioners right across Tasmania, it's not just in the Kingborough area and it would be very difficult to get a replacement of any sort for Doctor Lad quickly and I say that because of the fact that there's a shortage of general practitioners in regional areas right throughout Australia, not just Tasmania, so that is a factor which in my submission points to the serious disruption that his sudden removal totally from practice would entail. It's unlikely they would be able to get anyone, as I say, in a short time, it's even more unlikely that they'd be able to get someone of his calibre as demonstrated by the material that's before the Tribunal, of his willingness to go the extra yard, if I can put it that way, to serve the community. The community will lose if he's not able to continue his practice."

8 In giving its reasons for the penalties that it imposed, the Tribunal listed the matters it took into account in deciding upon the appropriate period of suspension. Amongst other things, it said that it took into account "to the limited extent permissible, the difficulties created by the shortage of general practitioners, the particular impact on present patients of Doctor Lad and the impact on the practice generally."

9 Mr Jackson was not forewarned by counsel for the respondent that he intended to make the submissions that I have quoted above. He was offered a right of reply by the chairman of the Tribunal, but said nothing about those submissions. He was not in a position to respond to them without taking instructions. There was a delay of some hours before the Tribunal imposed the penalties and stated its reasons, but Mr Jackson did not ask for time to take instructions as to the submissions, and did not seek instructions as to them.

10 The evidence in Dr Williams' affidavit is as follows. She has practised medicine in Kingston for about 29 years. She employs eight doctors in Kingston and three in Margate. Arrangements are being made by an organisation to acquire both the practice with which she is associated and that with which the respondent has been associated. That organisation is arranging to build a "medical facility" in Kingston where at least 20 medical practitioners will work. She has experienced no difficulty in attracting doctors who wish to train or practise in Kingston. She has always been able to fill vacancies without significant delays. The number of doctors practising in the area has been limited by the amount of accommodation available.

11 The evidence in Mr Barns' affidavit is as follows. He is not a medical practitioner. He is the chief executive officer of a company that provides assistance to general practitioners in recruiting doctors to practise in Tasmania, but not in Kingston or other parts of the Hobart area. The Tasmanian government is empowered to declare an "Area of Need" upon a request from a medical practitioner if he or she has been unable to attract an Australian graduate general practitioner to that area, whereupon an overseas doctor may be recruited. His company has only once been contacted about a possible shortage of general practitioners in the Kingborough area, by the mayor of Kingborough in or about June 2006. Kingborough has one doctor for every 876 people. The Commonwealth government can declare an area to be a "District of Workforce Shortage" if it has more than 1,500 people per general practitioner, but not on the basis of simple ratios. That will only be done if an individual medical practice demonstrates a documented history of unsuccessful attempts to recruit Australian graduates after advertising for at least six months.

12 Counsel for the appellant submitted that this evidence should be admitted on the hearing of the appeal on two bases: (i) that it satisfies the traditional requirements for the admission of fresh evidence on the hearing of an appeal; and/or (ii) that it should be admitted because the Tribunal was misled by the material placed before it concerning a shortage of general practitioners.

13 Counsel for the respondent submitted that this Court has no power to receive evidence upon the hearing of an appeal pursuant to the Act. He pointed out that the Act contains no provision expressly permitting evidence to be adduced on the hearing of an appeal, unlike the Criminal Code, s409(1)(c), and the Supreme Court Civil Procedure Act 1932, s48. I reject that submission, on the same basis that I rejected a similar submission in Fernando v Medical Complaints Tribunal (No 2) [2003] TASSC 139; (2003) 12 Tas R 337 at 339 - 344. The right to appeal is conferred by the Act, s61. The Act is silent as to whether an appeal under s61 is an appeal in the strict sense, an appeal by way of hearing de novo, or an appeal by way of rehearing. Because of the provisions of the Supreme Court Civil Procedure Act, s6(3), and the Supreme Court Rules 2000, rr704, 689 and 693, and in the absence of any indication of a contrary intention, it must be concluded that an appeal pursuant to s61 is an appeal by way of rehearing. See also In re Medical Act 1959 [1973] Tas SR 43; Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan [1931] HCA 34; (1931) 46 CLR 73 at 108 - 109. An appeal by way of rehearing is the form of appeal that was available in the Court of Chancery prior to 1873. There are various situations in which additional evidence may be received upon the hearing of such an appeal: In re Medical Act 1959 (supra) at 54; (1718) Prec Ch 494 at 496, at 222; (1850) 2 Mac and G 52 at 56; , at 22; Daniell's , 4th ed (1867) at 1368;

14 In criminal appeals, which are a species of appeals by way of rehearing, a distinction is drawn between "fresh evidence" and "new evidence". That distinction was well explained by Steytler J in Mickelberg v R (2004) 29 WAR 13 at 129, in a part of his reasons with which Malcolm CJ and Murray J expressed agreement, as follows:

"'Fresh' evidence is evidence which either did not exist at the time of the trial or which could not then with reasonable diligence have been discovered. 'New' evidence is evidence which was available at the trial or which could, with reasonable diligence, then have been discovered."

15 In the proceedings before the Tribunal, counsel assisting the Tribunal was aware of the decision of the South Australian Full Court in Craig, was alert to the possibility of a submission that the respondent's patients would have difficulty finding other doctors if he were removed from practice, and had been supplied with the references that included suggestions of a relevant shortage of general practitioners. In those circumstances, I think it must have been reasonably foreseeable on his part that it would be asserted to the Tribunal, and perhaps accepted by the Tribunal, that a shortage of general practitioners affected the Kingston area and was likely to result in the respondent's patients having great difficulty in finding other general practitioners if he were to cease practice. There is no reason to think that the evidence of Dr Williams or Mr Barns would not have been available to the appellant or Mr Jackson when the matter was before the Tribunal. When the question of penalty was before the Tribunal, it cannot be said that the evidence of those witnesses did not exist, nor that it could not with reasonable diligence have been discovered. It follows that their evidence is not "fresh evidence" of the type that is traditionally received in appeals by way of rehearing.

16 It is therefore necessary to consider the alternative submission of counsel for the appellant, based on the proposition that the Tribunal was misled as to a shortage of general practitioners. New evidence, as distinct from fresh evidence, is admitted, when appropriate, in criminal appeals because of the statutory requirement in the standard form of criminal appeal legislation for an appeal to be allowed when there has been a miscarriage of justice. See, for example, the Criminal Code, s402(1). No such statutory provision is applicable in this case. No doubt there are some situations in which this Court may admit new evidence on the hearing of an appeal from the Tribunal, and allow that appeal as a result. For example, I think it would be appropriate to take such a course if there were evidence establishing that, in the course of sentencing submissions, false information had been fraudulently presented to the Tribunal, and had made a significant difference to the penalties imposed. It is clear that new evidence may be received, and an appeal allowed, when such a situation occurs during sentencing proceedings in a criminal court: R v Beldan [1986] 2 Qd R 179. Counsel for the appellant relied on that case.

17 However I think a distinction needs to be drawn between incorrect information that is presented to a court or tribunal as a result of fraud, dishonesty, or bad faith, and incorrect information that is presented to a court or tribunal in good faith, without any fraud or dishonesty. In this case there has been no suggestion of fraud, dishonesty or bad faith. In the absence of any such factor, when counsel for a party to proceedings before a statutory tribunal provides that tribunal with evidence or information relevant to a matter in issue in the proceedings, or relevant to a matter that may be placed in issue in the proceedings, that is an ordinary part of the quasi-judicial decision-making process, even if that information happens to be incorrect. In this case, the information presented to the Tribunal as to a shortage of general practitioners, and as to the consequences of that shortage, may well have been incorrect, at least in part. The very nature of the disputed information is that it involved value judgments as to matters on which minds might differ, and predictions as to the future. How scarce do general practitioners have to be for there to be a shortage of them? How difficult does the replacement of a suspended general practitioner have to be for such a difficulty to be regarded as unacceptable, or even significant? It was open to the appellant or to Mr Jackson to dispute assertions in the material placed before the Tribunal, and to dispute the assertions made to the Tribunal on behalf of the respondent. Seeking to do that now, on the basis of evidence that could have been adduced when the matter was before the Tribunal, is tantamount to seeking a hearing de novo in relation to an issue that was before the Tribunal. Such a course is not appropriate as the type of appeal provided for in the Act is not an appeal by way of hearing de novo, but an appeal by way of rehearing in the old technical sense.

18 Although I consider that a court hearing an appeal of this nature has the power, in appropriate situations, to receive new evidence, that power should be exercised in accordance with established principles: Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 519. There is no established principle whereby evidence as to a contested or contestable fact, amounting to new evidence but not to fresh evidence, may simply be admitted on appeal in the hope of one party getting a more favourable result when the decision appealed from has not been tainted by a lack of good faith.

19 For these reasons, I will not permit counsel for the appellant to rely upon the three affidavits that I have referred to.